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« Court Report | Main | Patenting Necessary for Continued Innovation in Biotech/Pharma Industries, Academics Conclude »

February 11, 2014


Is this the same type of 'pragmatic catastrophe' that the animal rights followers suffered in Lujan?

I am not seeing a palpable distinction. The "You may participate, but only until you lose" argument falls flat because the venue in which you are participating is changing, and each venue has well-understood rules, and it is those rules that are being applied. This is just another bite at the apple of Congress made everyone an interested party line of thought - the same line of thought that failed in Lujan.

Excellent post--thank you. I am confused, though, about how CW was able to participate in an inter partes review in the first place if the government now considers it to lack standing. Can inter partes reviews be initiated by anyone regardless of whether they might infringe the patent, or did the PTO make a mistake by allowing CW to initiate one? If CW was properly allowed to initiate the inter partes review, I kind of agree with them that it doesn't really make sense to not allow them to appeal a decision. On the other hand, if CW wins this argument, then inter partes review becomes an end run around standing, doesn't it? Odd as it seems, I think the government has to win here or there will probably be a flood of inter partes reviews by public interest groups that would otherwise not have standing--frankly, a huge mess.


To alleviate your confusion regarding "I am confused, though, about how CW was able to participate in an inter partes review in the first place if the government now considers it to lack standing." please remember that an adjudication before an Article I court (that is, a court in an executive branch agency setting) has a different set of rules from an adjudication before and Article III court (that is, a court fully in the judicial branch).

What this comes done simply enough is the recognition that two different forums simply have different rules.


The difference is that different rules apply to Article I and Article III courts.

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