Litigants must generally exhaust all arguments before
administrative agencies, but structural constitutional claims are
unique.
In
Carr v. Saul, the U.S. Supreme Court unanimously
held that a party can raise a challenge under the
Constitution s Appointments Clause to an Administrative Law
Judge s ( ALJ ) decision, even if the party did not
raise the issue at the ALJ hearing. Although
Carr
involved Social Security benefits, the Supreme Court s decision
sheds light on how litigants can bring structural constitutional
challenges to agency decisions more generally.
As a general rule, parties seeking judicial review of an ALJ
ruling must exhaust all of their claims by raising them
Obhan & Associates
Trademarks Comparative Guide for the jurisdiction of India, check out our comparative guides section to compare across multiple countries
Dennemeyer Group
Though we may not all admit it, few among us can resist the appeal of a candy bar. But did you know the history of these confections and their value as Intellectual Property assets?
Jenner & Block
On April 5, 2021, the US Supreme Court decided the long-running and closely-watched case of Google v. Oracle
Volpe Koenig
Functional claim language which defines an invention by what it does rather than what it is can be a powerful claim drafting tool when used carefully.
What is Supplemental Examination?
Supplemental examination (SE) gives patent owners a proactive
tool to have the USPTO consider, reconsider, or correct
information that the patent owner believes is relevant
to the patent. 35 U.S.C. § 257(a). The information
that may be submitted with a supplemental examination request is
not limited and includes any and all information that could be
relevant to an allegation of inequitable conduct or unclean
hands.
The benefit of supplemental examination is that any information considered, reconsidered, or corrected during a supplemental
examination of the patent cannot be the basis for a holding
of unenforceability. 35 U.S.C. § 257(c)(1). In other
Drafting the expert declaration is another critical task for
Patent Owners during the
inter partes review
( IPR ) discovery period. As noted in our previous post, IPR expert witnesses provide
declarations as affirmative testimony in lieu of live testimony
before the Board at the hearing. Because the expert witness will
not be able to provide live testimony before the Board, expert
declarations are the final evidence of the experts opinions,
as there is no opportunity to correct misstatements or mistakes.
Due to the procedural schedule of the IPR system, Patent Owners
have the unique opportunity to file their expert declarations
after deposing Petitioners experts, providing a
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The USPTO 101 Guidance document has been under a cloud when
Judge Brinkema refused to follow the guidance in
Cleveland
Clinic Found. V. True Health Diagnostics LLC., affirmed
at 760 F. App x. 1013, 1020 (Fed. Cir. 2019). In Cleveland
Clinic relied on Guidance example 29, claim 1 to assert that its
claims were patent eligible since they were drafted in the same
manner. The Federal Circuit in rejecting the argument found the 101
Guidance example 29, claim 1 to be “strikingly” similar
to claim 1, see760 F. App x. at 1020, which the Federal Circuit
held was patent ineligible. The guidance teaches that example 29,