Patent Law

From two June 4, 2009 posts by Matt Osenga at his Inventive Step blog:

One of the plaintiffs in the PTO rules case, Dr. Tafas, has filed a combined petition for the Federal Circuit panel to rehear the case, or alternatively, for the entire court to rehear the case en banc.  At this stage, it is unclear if either the PTO or the other plaintiff, GlaxoSmithKline, has filed its own petition.  Patent Docs has a good summary of Dr. Tafas? arguments.

Basically, Dr. Tafas argues that the panel decision misapplied Supreme Court and Federal Circuit precedent in several ways.  First, the panel used the incorrect standard for determining whether a rule is substantive or non-substantive; second, the panel failed to consider the implications of the rules on individual rights and obligations; third, the panel failed to address whether the PTO had authority to enact the rules under the Patent Act; and finally, the panel erred in its Chevron deference analysis.

GSK has also filed a petition for rehearing en banc.

In its brief, GSK argues that the panel?s decision conflicts with the Supreme Court?s test for determining whether rules are procedural or substantive.  Substantive rules are those that are a ?legislative-type? and that ?affect[] individual rights and obligations.?

Read the posts here and here.