On Monday, June 27, the United States Supreme Court granted certiorari in a case that could have a significant impact on district court appeals of decisions of the United States Patent and Trademark Office (“PTO”). The Court will review the en banc Federal Circuit decision, Hyatt v. Kappos, 625 F.3d 1320 (Fed. Cir. 2010), which gave district courts broad power to consider new evidence in cases challenging PTO decisions. The case has the potential to provide important limits on the ability of patent applicants to use district court proceedings to challenge decisions of the PTO.
Under 35 U.S.C. §§ 145 and 146, a patent applicant or a party to a patent interference dissatisfied with a decision of the Board of Patent Appeals and Interferences (“the Board”) can choose two avenues of review. First, the applicant or party may appeal to the Court of Appeals for the Federal Circuit, which will review the Board’s decision based only on the record submitted to the PTO. In that case, the Federal Circuit reviews the Board’s decision under a deferential standard set forth in the Administrative Procedure Act.
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