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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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