5 U.S.C.§ 553: Patent Elephants in Process Mouseholes
7 Pages Posted: 1 Apr 2009 Last revised: 9 Jan 2015
Date Written: March 28, 2009
Reversing Tafas v. Dudas, 541 F.Supp.2d 805 (E.D.Va. 2008), a panel of the Federal Circuit in Tafas v. Doll, 2009 WL 723353 (Fed. Cir. 2009), finds challenged rules within the rulemaking authority of the U.S. Patent and Trademark Office (PTO). It therfore remands for consideration of a host of issues that the district court had not needed to reach.
This comment focuses on one question to be considered on remand: whether the PTO must use notice and comment rule making to promulgate procedural rules. It argues that the statute does not warrant imposing such an unusual duty. Moreover, it argues that the issue need not be addressed insofar as rules in question were in fact promulgated after notice and extensive (if largely unfavorable) public comment.
The comment also notes that the opinion was vacated by the Federal Circuit en banc in Tafas v. Kappos.
Keywords: patent and trademark office, PTO, administrative process, rulemaking authority
JEL Classification: K20, K23
Suggested Citation: Suggested Citation