Law Commons^™

Is The Statutory 60-Day Deadline For Filing A Petition For Review Of A Final Mspb Order Jurisdictional?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: The Department of Defense (DOD) furloughed employee Stuart R. Harrow in 2013. Harrow timely challenged DOD’s decision before an administrative judge, who affirmed it. Harrow timely appealed the judge’s decision to the Merit System Protection Board (MSPB or “Board”), which could not act on the appeal for over five years because it lacked a quorum. On May 11, 2022, the MSPB issued a final order, affirming the judge’s decision. However, Harrow did not learn of the decision until August 30. Harrow promptly filed a petition to review the Board’s order with the Federal Circuit, which denied …

Benchmarks For Reducing Civilian Harm In Armed Conflict: Learning Feasible Lessons About Systemic Change, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Rescinding Inclusion In The Administrative State: Adjudicating Daca, The Census, And The Military's Transgender Policy, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Travel Ban Decision, Administrative Law, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Federal Circuit As An Institution, Ryan G. Vacca

Law Faculty Scholarship

The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines this development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution.

This chapter begins with an overview of the concerns existing before creation of …

Critical Infrastructure, Cybersecurity, And Market Failure, John J. Chung

Law Faculty Scholarship

No abstract provided.

Re-Framing Biotechnology Regulation, Alison Peck

Law Faculty Scholarship

Biotechnology is about to spill the banks of federal regulation. New genetic engineering techniques like CRISPR-Cas9 promise revolutionary breakthroughs in medicine, agriculture, and public health-but those techniques would not be regulated under the terms of the Coordinated Framework for Regulation of Biotechnology. This revolutionary moment in biotechnology offers an opportunity to correct the flaws in the framework, which was hastily patched together at the advent of the technology. The framework has never captured all relevant technologies, has never satisfied the public that risk is being effectively managed, and has never been accessible to small companies and publicly-funded labs that increasingly …

Deferred Action And The Bounds Of Agency Discretion: Reconciling Policy And Legality In Immigration Enforcement, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Keeping The Lights On During Superstorm Sandy: Climate Change And Adaptation And The Resiliency Benefits Of Distributed Generation, James M. Van Nostrand

Law Faculty Scholarship

Hurricane Sandy (ultimately downgraded to "Superstorm" Sandy by the time it hit the coasts of New York and New Jersey in late October 2012) was the most lethal and destructive hurricane in 2012, resulting in 285 deaths, $68 billion in damages, and 8.5 million utility customers in the eastern United States losing power. Superstorm Sandy provided a wake-up call for electric utilities on the need to adopt a different set of long-term planning tools to improve the resilience of the electric system against anticipated extreme weather events. The experience of Superstorm Sandy provides a case study of the system resiliency …

Making Do In Making Drugs: Innovation Policy And Pharmaceutical Manufacturing, W. Nicholson Price Ii

Law Faculty Scholarship

Despite increasing recalls, contamination events, and shortages, drug companies continue to rely on outdated manufacturing plants and processes. Drug manufacturing’s inefficiency and lack of innovation stand in stark contrast to drug discovery, which is the focus of a calibrated innovation policy that combines patents and FDA regulation. Pharmaceutical manufacturing lags far behind the innovative techniques found in other industries due to high regulatory barriers and ineffective intellectual property incentives. Among other challenges, although manufacturers tend to rely on trade secrecy because of the difficulty in enforcing patents on manufacturing processes, trade secrecy provides limited incentives for innovation. To increase those …

Reforming Lawyers Into Irrelevance?: Reconciling Crisis And Constraint At The Office Of Legal Counsel, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Law Faculty Scholarship

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …

Rule-Making Petition Concerning Eligibility, Under 37 C.F.R. § 11.7 To Sit For The Examination For Registration To Practice In Patent Cases Before The United States Patent And Trademark Office, Thomas G. Field Jr.

Law Faculty Scholarship

This Petition under 5 U.S.C. § 553(e) is filed on behalf of Petitioner and other parties with legally-cognizable interest (hereafter “Signatories”) in the specification of credentials under guidelines promulgated by the PTO Office of Enrollment and Discipline (“OED”) and amended from time without public notice or opportunity to comment. Signatories include individuals likely to be unfairly refused permission to sit, individuals whose status is uncertain, and professors with an interest in whether their students may or may not be permitted to sit. Signatories hereby request that the PTO, in accordance with 35 U.S.C. § 2(b)(2)(D), amplify the qualifications sufficient to …

The Battle For Separation Of Powers In Rhode Island, Carl Bogus

Law Faculty Scholarship

No abstract provided.

Judicial Review Of Copyright Examination, Thomas G. Field Jr

Law Faculty Scholarship

Copyright in qualifying United States works has always arisen upon creation. For many years, however, rights could be lost by failing to, e.g., provide notice, register and deposit copies when works were first published. In 1909 formal requirements were reduced, and the Supreme Court, in 1939, concluded that registration with the U.S Copyright Office was unnecessary to retain rights. Despite that, owners could not sue infringers without having registered.

Regarding registration as helpful if not obligatory, this paper compares the burden on moving parties in circumstances in which registration decisions may be challenged in courts.

Zurko, Gartside, And Lee: How Might They Affect Patent Prosecution?, Thomas G. Field Jr

Law Faculty Scholarship

Interactions between the PTO and the courts are more complex than for most agencies. PTO decisions may be challenged not only directly but also collaterally. In the latter context, the Supreme Court has sometimes been critical of the lax standards applied when issuing patents.

While being upheld in collateral review is the ultimate issue of concern to patentees, patents must first be obtained. Thus, this paper focuses on direct challenges to PTO actions--and more specifically, on the review arising under 35 U.S.C. §§ 141-44 as addressed in Zurko, Gartside, and Lee.

Since the Supreme Court reversed the …

Direct Judicial Review Of Pto Decisions: Jurisdictional Proposals, Thomas G. Field Jr

Law Faculty Scholarship

Judicial review of U.S. Patent and Trademark Office ("PTO") decisions is complex-- perhaps more than that of any other agency. One source of complexity is that courts review its decisions both collaterally and directly.

One goal of this article is to map possible routes to judicial review and suggest strategies for avoiding jurisdictional uncertainties and delay. The core thesis of this article, however, is that parties should not need to cope with arcane review schemes. Direct PTO review can and ought to be simplified. This can be accomplished by adjusting the Federal Circuit's original and appellate jurisdiction.

Chevron Deference To The Uspto At The Federal Circuit, Thomas G. Field Jr.

Law Faculty Scholarship

Courts have long deferred to agency views of law, but they have also often refused. The Federal Circuit, too, defers on some occasions but not others. This paper examines the apparent inconsistency in its cases.

Zurko Raises Issue Of Patentability Standards, Thomas G. Field Jr.

Law Faculty Scholarship

In re Zurko isolated one of the oldest U.S. agencies from mainstream administrative law because the Federal Circuit has chosen to review the U.S. Patent and Trademark Office more as it would a federal district court. The case is important, if only because the Supreme Court rarely treats the PTO as an agency. Also, regardless of whether the issue or the Federal Circuit itself is the primary target, the decision could have a major effect on the type of case most commonly encountered by that court.

Brief Amici Curiae Of Intellectual Property Professors In Support Of Petitoner, Thomas G. Field Jr., John F. Duffy, Craig Allen Nard

Law Faculty Scholarship

Congress enacted the Administrative Procedure Act (APA) in 1946 as a comprehensive statute to regulate the field of federal administrative law. In holding that the PTO Board of Patent Appeals and Interferences is not subject to the standards of judicial review set forth in the APA, the [Zurko] decision isolates patent law from the rest of administrative law and undermines the APA’s goal of achieving consistency and uniformity in federal administrative law.

Amicus Brief Of Thomas G. Field, Jr., Pro Se Supporting In Principle, On Rehearing The Commissioner Of Patents And Trademarks, Thomas G. Field Jr.

Law Faculty Scholarship

To those unfamiliar with the long, often bitter, struggle over equally compelling needs to provide, on the one hand, innovators with an adequate opportunity to recoup risk capital and to avoid, on the other, erecting unwarranted barriers to competition, a dispute over the proper scope of review for Patent and Trademark Office (PTO) patent appeals will seem both trivial and arcane. This case involves more than semantics -- its resolution turns on the allocation of power among three, and arguably four, branches of government. This Court, itself, has a stake.

State Regulation Of Charitable Solicitation, Elaine Waterhouse Wilson

Law Faculty Scholarship

No abstract provided.

Promulgating Requirements For Admission To Prosecute Patent Applications, Michelle J. Burke, Thomas G. Field Jr

Law Faculty Scholarship

Among federal agencies, the U. S. Patent and Trademark Office is unique in its ability to require attorneys to submit to special requirements, such as passing a six hour examination, before being permitted to practice before it in patent cases. Indeed, the Supreme Court has held that an individual so admitted to practice before the PTO need not comply with state requirements otherwise applicable to those practicing law.

The first part of this article discusses how this requirement came to be. It then discusses how the PTO determines whether an individual is fit to sit for the patent examination, focusing …

Does An Administrator's General Interest In Fulfulling Her Duties Meet The Constitution's Requirements For Seeking Judicial Review Of A Decision She Doesn't Like?, Patrick C. Mcginley

Law Faculty Scholarship

No abstract provided.

To Defer Or Not To Defer: When Must A Court Honor An Administrative Agency's Interpretation Of Its Own Regulations?, Patrick C. Mcginley

Law Faculty Scholarship

No abstract provided.

Access To And Authority To Cite Unpublished Decisions Of The Pto, Thomas G. Field Jr

Law Faculty Scholarship

This paper begins with the Solicitor [of the U.S. Patent and Trademark Office]'s explanation of the term "unpublished." It then reviews various kinds of published PTO decisions where the precedential effect of unpublished decisions has been addressed. There, we see that the PTO has generally not ignored unpublished precedent--at least, deliberately--and that the Solicitor agrees that this may not be done. Next, this paper examines the almost universal practice of federal appeals courts disallowing use of their unpublished decisions as precedent--and some of the reasons for widespread criticism of that practice. It also discusses some of the reasons that judges, …

The West German Administrative Procedure Act: A Study In Administrative Decision Making, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Vermont Yankee Nuclear Power Corporation V. Natural Resources Defense Council, Inc. Consumers Power Company V. Nelson Aeschliman, Et Al., Patrick C. Mcginley

Law Faculty Scholarship

No abstract provided.