Tafas v. Dudas: Elephants in Mouseholes
2 Pages Posted: 18 Jul 2008 Last revised: 9 Jan 2015
Date Written: July 17, 2008
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: Suggested Citation