Administrative Law Observations on Cuozzo Speed Technologies v. Lee
American Bar Ass'n, Landslide, vol. 9 no. 3, digital feature (Jan-Feb 2017)
15 Pages Posted: 22 Oct 2018
Date Written: January 1, 2017
Cuozzo Speed Technologies v. Lee illustrates an important lesson for the patent bar: federal courts are far more familiar with administrative law than with patent law. Almost every federal court hears several times as many administrative law cases as patent cases. Even the Federal Circuit sees at least as many administrative law issues (involving various federal employees and contracts) as patent law issues. We patent lawyers need better issue spotting skills for administrative law issues, and when a case presents them, to best serve our clients, we must argue on administrative law grounds with administrative law expertise. Basic principles of good advocacy urge us to argue our cases on the courts’ choice of turf.
Cuozzo is a prime illustration. Cuozzo lost an eminently winnable case. Both the loss and the Court’s murky reasoning stem from Cuozzo’s brief: the brief fails to mention a dead-on statute, and is all but silent on the Supreme Court’s administrative law case law. The murkiness creates many future opportunities for informed administrative law advocacy, as the law redevelops in light of Cuozzo’s ambiguities.
Note: Published in Landslide Magazine, Volume 9, Number 3, ©2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Keywords: patent law, administrative law, preclusion of reviw
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