Tafas v. Dudas: Elephants in Mouseholes

2 Pages Posted: 18 Jul 2008 Last revised: 9 Jan 2015

See all articles by Thomas G. Field

Thomas G. Field

University of New Hampshire School of Law (formerly Franklin Pierce Law Center)

Date Written: July 17, 2008

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.

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

JEL Classification: K20, K23

Suggested Citation

Field, Thomas G., Tafas v. Dudas: Elephants in Mouseholes (July 17, 2008). Available at SSRN: https://ssrn.com/abstract=1162170 or http://dx.doi.org/10.2139/ssrn.1162170

Thomas G. Field (Contact Author)

University of New Hampshire School of Law (formerly Franklin Pierce Law Center) ( email )

Two White Street
Concord, NH 03301
United States

HOME PAGE: http://https://law.unh.edu/faculty/field

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