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David Walter v. Andrei Iancu, Director, United States Patent and Trademark Office

Paid petition · United States Court of Appeals for the Federal Circuit, No. 2016-2256 · judgment August 21, 2017


Certiorari denied · April 2, 2018
Pre-decision estimate: 1% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

Is the United States Patent and Trademark Office (hereinafter “USPTO”), entitled to Skidmore [Skidmore v. Swift & Co., 323 U.S. 134 (1944)], Mead [United States v. Mead Corp., 533 U.S. 218 (2001)], or Chevron [Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)] deference in the implementation of its own internal Interpretive Rules, which are set forth in its own Manual of Patent Examination Procedure (hereinafter “MPEP”). If said deference results in a patent Rexam Petitioner being denied his due process rights under the Fifth Amendment of the U.S. Constitution, should any deference to said agency continue? Is the United State Patent and Trademark Office’s failure to follow its own interpretive rules in its MPEP and give proper any adequate notice to a patent reexamination petitioner that the patent office had rejected, or otherwise not given any weight to, a 37 CFR 1.32 expert affidavit, and, as a result, the patent Reexam Petitioner’s patent is invalidated by the USPTO, a violation of due process rights in the Fifth Amendment to the U.S. Constitution and a violation of Administrative Procedure Act 5 U.S.C. §701-708, and related administrative law, and U.S. Supreme Court precedent [see Wong Yang Sung v. McGrath 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950)]?

Counsel of record

For petitioner
Steven J. Miller
The Miller Law Offices, PLC

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 1 conference

Proceedings

  1. Apr 02 2018
    Petition DENIED.
  2. Mar 13 2018
    DISTRIBUTED for Conference of 3/29/2018.
  3. Mar 07 2018
    Waiver of right of respondent Joseph Matal, Interim Director, United States Patent and Trademark Office to respond filed.
  4. Feb 26 2018
    Petition for a writ of certiorari filed. (Response due March 30, 2018)