Supreme Court gets tough on USPTO in Kappos v Hyatt
09 January 2012
Patrick Ross, Washington DC
The USPTO today faced aggressive questioning from Supreme Court justices regarding the agency’s request to overturn a Federal Circuit en banc ruling it says will encourage patent applicants to withhold evidence in examination
During oral arguments in Kappos v Hyatt, US Justice Department assistant to the solicitor general Ginger Anders said litigants in a section 145 appeal shouldn't be allowed to introduce in court evidence not in the initial application or appeal to the Board of Patent Appeals and Interferences.
The en banc decision found that admission of evidence should be decided under federal rules of evidence, not administrative law. As such, it should be a de novo proceeding, with wide latitude for evidence admission.
The Federal Circuit has long practised administrative deference to the USPTO, Anders said. The court's decision earlier this year in Microsoft v i4i, which established a so-called clear and convincing evidentiary burden to override administrative deference, gives further weight to the USPTO's argument, she said.
Kappos v Hyatt involves a patent owner, Gilbert Hyatt, whose application was rejected by the USPTO and the BPAI. He introduced...
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