“…rescinding highly controversial regulations, proposed by the previous administration, that patent applicants felt unduly restricted their capacity to protect intellectual property….“The USPTO should incentivize innovation, develop rules that are responsive to its applicants’ needs and help bring their products and services to market,” Kappos said. “These regulations have been highly unpopular from the outset and were not well received by the applicant community. In taking the actions we are announcing today, we hope to engage the applicant community more effectively on improvements that will help make the USPTO more efficient, responsive, and transparent to the public.” We are grateful to GlaxoSmithKline….”

Obviously, Kappos is taking a shot at the previous administration.

U. S. BANCORP MORTGAGE COMPANY, PETITIONER v. BONNER MALL PARTNERSHIP 513 U.S. 18.

Therein lies additional reasoning why the Office should be denied vacatur. The Court should not reward the Office’s illegal power grab with a clean slate and a chance to do the whole thing over again.

The Office has chosen to rescind rather than face what an En Banc CAFC might decide. It would not be equitable to overturn the existing rule of law (the DC ruling which goes against them) as the circumstances of review are completely accountable and the flow of judicial review is not being stopped by an uncontrollable happenstance. There would be no equity in rewarding such behavior.

I understand what you are saying, I really do, but the Supreme Court has made it clear that the fact that the parties ask for vacatur is irrelevant, as is a settlement agreement. I personally think the rules of equity weigh heavily against a vacatur. The Patent Office engaged in a lot of questionable behaviors, and clearly overstepped their bounds. This feeling is almost universally held, save the two judges on the CAFC (Bryson and Post) who overturned the Cacheris decision. Even David Kappos, when he was in the private sector, felt the USPTO overstepped their bounds. When an agency of the federal government acts in that way it seems to me that there is great cause for not acting like something never happened. Just my opinion. Time will tell.

Thanks for chiming in.

-Gene