Posts Tagged: Administrative Procedure Act
Federal Circuit: PTAB Failed to Provide Adequate Notice of Sua Sponte Claim Construction
In a precedential opinion authored by chief Judge Moore, the U.S. Court of Appeals for the Federal Circuit today vacated and remanded six Patent Trial and …
USPTO Implementation of Arthrex: Questions from Administrative Law, Part I—Dismissal and Subregulatory Rulemaking
In United States v. Arthrex, No. 19-1434, 141 S.Ct. 1970 (Jun. 21, 2021), Chief Justice Roberts cured an Appointments Clause defect in the Patent Trial and Appeal Board’s (PTAB’…
Federal Circuit Holds a ‘Similar Enough’ Claim Construction Doesn’t Violate the APA
In Hamilton Beach Brands v. F’Real Foods, the Federal Circuit found that under the Administrative Procedure Act, the Patent Trial and Appeal Board’s adopted claim …
Brett Kavanaugh: A history of Skepticism toward the growth of the Administrative State
As was the case with Justice Neil Gorsuch, Kavanaugh has a history of being skeptical toward the growth of the Administrative State, which means the growth of …
The Federal Circuit’s Hidden Agenda
One might naturally expect that, if a rejection under § 101 appealed from the PTAB failed to address all the claim limitations and had zero supporting evidence to determine …
Berkheimer, the Administrative Procedure Act, and PTO Motions to Vacate PTAB § 101 Decisions
After several years in which the U.S. Patent and Trademark Office (PTO) did not seem to have an official position on the issue, and many Patent …
PTAB Not Required to Consider New Evidence or Arguments at Oral Argument
The Board is not compelled by Federal Circuit precedent or PTO guidelines to consider arguments and evidence presented for the first time during oral argument. However, if …
PTAB Phantom Expanded Panels Erode Public Confidence and Essential Fairness
If this practice of phantom expanded panels, with APJs not identified on the record or to the parties, is legal then IPR panel assignments are nothing more …
The only solution for the transgressions of the PTAB is to disband this runaway tribunal
Hiring senior associates to be Administrative Patent Judges was a mistake, hiring so many senior associates from the same firm was an even bigger mistake. Making it …
USPTO admits to stacking PTAB panels to achieve desired outcomes
The USPTO admits that the Director does not have statutory authority to adjudicate an issue after a panel has been chosen, but argues that the Director can …
PTAB Reversed for Failing to Explain the Basis for its Obviousness Decision
The Federal Circuit vacated and remanded the PTAB's decision in an inter partes review proceeding, finding the Board did not set forth its reasoning for finding the …
Board Cannot Adopt New Claim Construction Without Giving Notice to the Parties
The Federal Circuit held that the Board’s changed claim construction of “data flow,” violated the Administrative Procedure Act (APA), even if it was correct. In particular, …
Opportunity to Reform Existing PTO Regulations and to Ease Patent Application Paperwork Burden
The Patent Office recently requested comment on the paperwork that applicants submit during post-filing, pre-allowance patent prosecution (Patent Processing (Updating), comment request., 77 Fed. Reg. 16813-17 (Mar. 22, 2012)). This …
Having it Both Ways: the USPTO’s Inconsistent Positions in In re Lovin and Kappos v. Hyatt
Since 1993, the United States Patent & Trademark Office (USPTO) has pursued an “aggressive campaign” to free itself from oversight by and accountability to the courts. [1] At the same …
CAFC Grants En Banc Review of BPAI to District Court Appeal
On February 17, 2010, the United States Court of Appeals for the Federal Circuit issued an order in Hyatt v. Kappos vacating the previous decision issued by a 3 judge …
