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January 19, 2020

Comments

I would be interested in views that address the fact that only the PTAB has authority to make an institution decision.

The CAFC does not have authority to force a "redo" of an institution decision AND dictate the results of that redone institution decision.

At point here (a point that Judge Newman has now missed twice), is that the original decision was every bit a decision NOT to institute on certain claims as it was a decision TO institute on other claims.

What Judge Newman wants - institution on ALL claims - is every bit as wrong as the CAFC attempting to force the PTAB not to institute at all.

With such a case of a 'mixed bag,' remand for a redo of an institution must necessarily include the possibility of EITHER institution on all grounds or not instituting at all (a view that Judge Newman has not supported).

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