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« Court Report | Main | Cancer Research Technology Ltd. v. Barr Laboratories, Inc. (Fed. Cir. 2010) »

November 15, 2010

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Comments

Why is that as much as Newman seems to be the one judge who understands the intricacies of the law,...

she is often the ONE judge who understands the intricacies of the law.

Has there ever been a judge so often in dissent that seems to be the one knowing which way to go?

The APA applies, all of it, even the parts that create carve-outs. Dyk and Gajarsa didn't read the whole statute.

5 USC § 703 provides that the judicial review provisions of §§ 701-706 apply as a default set of rules when no other statute particular to the agency or issue carves out an exception:

The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction ... in a court of competent jurisdiction.

Here Congress provided a separate "special statutory review," § 145, which departs from the APA § 706 baseline and puts you into ordinary Rules of Civil Procedure, just as Judge Moore explained.

Zurko expressly noted the carve-out and the difference between § 706 at the Federal Circuit vs. § 145/FRCP at District Court - I don't get Dyk's reasoning at all.

"Has there ever been a judge so often in dissent that seems to be the one knowing which way to go?"

Lulz, we'll see what the USSC has to say about whether Newman was right.

They've already told us in Zurko that the USPTO is not special and that the APA applies. 145 is not going to get off this hook easily if the USSC picks it up.

"Here Congress provided a separate "special statutory review," § 145, which departs from the APA § 706 baseline and puts you into ordinary Rules of Civil Procedure, just as Judge Moore explained.
"

Lulz. Riiiight.

The Supremes generally agree with Newman since she is the only one who understands the nuances of patent law since other than Lourie, she is the only one who was a practicing patent attorney before she was on the CAFC.

Is that so Joyce? I've forgotten, where was Newman on KSR? Where was Newman on Bilski? Zurko?

Idk, show me something where the supremes agreed with her.

6:

I think David was pointing out a critical difference. In Zurko, the Supreme Court was overruling how the Federal Circuit applied the law when it reviewed PTO factual determinations. It is clear that on matters of law like obviousness and enablement the court gives no deference to the PTO (or district courts, either) since review is de novo. The problem was that the court's review of PTO factual determinations was almost as non-deferential, and the Supreme Court ruled that the APA mandated a substantial evidence standard when it comes to factual determinations within the scope of the Office's expertise.

What David is saying is that the APA itself specifies that Congress can carve out areas where the APA is itself overruled by other statutes that grant powers of review not granted by the APA. This is one of them, according to David: the "exception" to the APA rule is precisely statutes like Sec. 145, which specify that an applicant has the right to file a lawsuit to have the district court declare her entitled to a patent.

I think the Supreme Court might need to step in to clarify matters, but David's read on the APA seems sound. The Patent Office isn't special except when Congress says it is, and Congress can say whatever it wants within its Article I (and other Constitutional) boundaries.

Thanks for the comment.

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