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July 13, 2023


Shockingly (or not), the minor footnote of the author's relation to Unified Patents does NOT inform the reader that Mr. Stroud has a DEFINITE conflict of interest (read that as being the ENTIRE business model of Unified Patents is facing extinction) that colors his views here.

"More than a decade ago Congress considered, and rejected, any standing requirements for post-grant proceedings... To be sure, the organic statute that grants the Office rulemaking power... explicitly affords some gap-filling discretion to the agency... Fast-forward to today. The Office now... argues that... the Office's real power lies in a single word, 'may,' as in, 'may not institute.'"

It does not *all* come down to "may." There is also the §314 provision that "[t]he determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable."

Congress is not like you or me. If you want to know what *I* meant when *I* wrote something, you can come back later and ask me. With Congress, however, every inquiry into Congress' "intent" is confined to the the written legislation and nothing else.

The fact that standing was debated in the lead-up to the AIA is beside the point. What matters is the words that ended up on the page at the end of the debate---the words that got passed by both houses and signed by the president.

*Those* words---the words that were actually enacted into law in the AIA---give the PTO unreviewable discretion over whether or not to institute. If they choose to implement a policy in which they will decline to institute among parties without a concrete grievance sufficient to support Art. III standing, who has standing to challenge that policy? The person whose petition is denied cannot challenge that policy, because the denial is unreviewable.

There is no such thing as a right without a remedy. But the actual language of the actual statue leaves the petitioner who is denied for want of Art. III standing without a remedy. It follows, then, that the petitioner without Art. III standing has no legal right to have that petition granted.

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