Emory Law Journal


The Federal Circuit¿s dismissal of Consumer Watchdog¿s appeal in 2014 illustrates a systemic shortcoming of standing in patent law. More specifically, the current implementation of the federal standing doctrine in patent litigation prevents public interest organizations from litigating the validity of patents. This shortcoming appears in spite of the fact that the patent system exists as a public endorsement of a private right in exchange for a purported social contribution on the part of the inventor and her invention. Instead of constructing an ill-fated legislative solution, this Comment suggests that the shortcoming may be overcome through action at the Patent Office. More specifically, the Patent Office, in promulgating rules relating to its internal operation, may establish a committee to recognize certain public interest organizations for membership in a special program. That program would offer those select organizations¿chosen on the basis of meritorious criteria and for a limited term¿the opportunity to submit themselves to monetary penalty upon losing an inter partes reexamination. The monetary loss then constitutes an injury in fact, the baseline requirement for appeal from administrative action.