Professor John F. Duffy
83 Geo. Wash. L. Rev. 628
Standing to challenge patent validity depends not only on factual assessments
about the risk of patent enforcement, but also on legal judgments about
the limits of judicial power under Article III of the Constitution, the specific
causes of action granted by Congress through its Article I powers, and the
degree of Article II executive branch power exercised in enforcing patents.
Consumer suits show the importance of the legislative power, for Congress
has created two causes of action that differ dramatically in their ability to provide
consumers with an effective means for challenging patents. Competitor
suits show the importance of Article II considerations. Because patents are
enforced largely by private parties, courts should be more willing to grant
standing to plaintiffs challenging the validity of patents than to plaintiffs
challenging the validity of statutes or regulations that can be enforced only by
governmental actors in the executive branch.
