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Well no ... That's Newman's point. It's not the rule of law. | 96 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Well no ... That's Newman's point. It's not the rule of law.
Authored by: Tolerance on Sunday, May 20 2012 @ 06:02 PM EDT
Well no ... I didn't call the multiple attempts at invalidation a waste, I was quoting the article. And the authors are complaining that such waste is precisely not the rule of law. That was in fact Newman's point in her dissent. When you read the actual opinion (Reexamination No. 90/007,751 "IN RE BAXTER INTERNATIONAL, INC.") you see Newman write, at the end;
"My colleagues justify the PTO’s authority to overrule ju- dicial decisions on the argument that the standard of proof is different in the PTO than in the courts. That theory is flawed, for obviousness is a question of law, and the PTO, like the court, is required to reach the correct conclusion on correct law. Any distinction between judicial and agency procedures cannot authorize the agency to overrule a final judicial decision ...

The court’s final judgment cannot be overridden by administrative proceeding."

And in fact she may be right. Judge Newman has raised a constitutional question:
"... decisions of Article III courts are not subject to negation by proceedings in the other branches ..."
... which is why I expect an application of certiorari to the Supreme Court.
And just to forestall more misunderstanding, I don't necessarily believe Newman is correct. Whether or not she is right to think an administrative decision can second-guess a court judgement, that's not necessarily what happened here.

To me the important points were (a) this is going to happen again, big time, and (b) it was entertaining that Judge Newman dismissed her colleague's earlier prediction that the BPAI could overrule the Federal judgement.

Anyway, on the whole I prefer the ratio of the other judges, which includes the point that there was different evidence and each invalidity attempt is on a different set of facts (prior art). But it's not my opinion which matters here.

---
Grumpy old man

[ Reply to This | Parent | # ]

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