Tafas v. Dudas: Elephants in Mouseholes

Abstract:     
As many had hoped, Tafas v. Dudas, 2008 WL 859467 (E.D.Va.) finds rules promulgated by the U.S. Patent and Trademark Office (PTO) void under the Administrative Procedure Act. Tafas correctly rejects a PTO argument that 35 U.S.C. 2(b)(2)(B) confers general authority to make binding substantive rules, quoting a Supreme Court observation that "Congress... does not... hide elephants in mouseholes." But Tafas goes too far. This comment explains why the court, having rejected that possibility, has found a larger animal in a smaller hole.

Number of Pages in PDF File: 2

Keywords: patent and trademark office, PTO, administrative process, rulemaking authority

JEL Classification: K20, K23

working papers series