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Tafas, GSK File Petitions For En Banc at the CAFC

By Peter Zura

I'm on travel this week, and have had very little time to post, so apologies in advance for the brevity . . .

Tafas, GSK filed petitions for en banc rehearing. From the Tafas brief, the questions presented :

1. Does the standard "foreclose effective opportunity to present patent applications for examination" or "effectively foreclose[] [applicants] from obtaining patent rights to which they are entitled" comport with United States Supreme Court and Federal Circuit precedent classifying "substantive" rules as those which cause a change in existing law or policy affecting individual rights and obligations?

2. Are Final Rules 75, 114, and 265 impermissibly inconsistent with law
so as to exceed the scope of the United States Patent and Trademark Office's
limited rule making authority under Section 2(b)(2) of the Patent Act?

From the GSK brief, the questions presented:

I. Whether the Panel maJonty erred in rejecting the test fo determining whether a Patent and Trademark Office ("PTO") rule is "substantive," as set forth in the controlling precedent of Chrysler, supra; Animal Legal Defense Fund, supra; and Cooper Technologies, supra.

II. Whether the Panel majority erred in holding that the challenged Final Rules, 72 Fed. Reg. 46,716 (Aug. 21, 2007), fall within th PTO's limited, non-substantive rulemaking authority.

Download a copy of the Tafas brief here (link)

Download a copy of the GSK brief here (link)

Full post as published by Two-Seventy-One Patent Blog on June 04, 2009 (boomark / email).