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Jonathan Stroud
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It's going to be fascinating to watch such a marked expansion of ALJs and the adjudicatory process at the administrative level. I've read through the bill a few times and I'm concerned that the Director doesn't really have the authority post-Tafas to make rules that govern the new PTAB's process. There are a lot of holes that still need to be filled in, and unless the PTO resorts to rulemaking-by-adjudication, I'm not sure it's entirely constitutional for the director to do what he must---i.e., issue notice-and-comment rules that govern the more substantive elements of the new post-grant review. It will be interesting to see if the Federal Circuit grants them some sort of deference or leeway. Professor Miller had an excellent discussion of the substance/procedure divide (and how the courts are basically wrong) in a recent issue of the Administrative Law Review, the abstract of which can be accessed here: Equally interesting is whether the Federal Circuit and/or the DCC will allow the PTO's "longstanding interpretation" of the new section 33 subject matter bar to stand or whether the new provision will breathe some new life into the plethora of 101 subject matter challenges like Myriad and Prometheus. Does anyone else think practitioners will try to make textual arguments that the new subject matter bar denies isolated gene patents, or for that matter, any claim that in part claims the human body (for instance, the human blood in the Prometheus patent)? For more on the latest slew of 101 challenges the Federal Circuit has rejected, see here:
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Oct 2, 2011