Filed November 9, 2016
536 F.3d at 1337. The question in Cooper Technologies was not whether notice-and-comment was required for interpretive rules, but rather what degree of 12 An “interpretive rule” does not depend on an express statutory grant of authority, see Animal Legal Defense Fund, 932 F.2d at 930; Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141 (1976), so the PTO may issue interpretive rules under its inherent authority. 13 Actelion Pharmaceuticals Ltd. v. Kappos, 972 F. Supp. 2d 51, 58 n.9 (D.D.C. 2013), asserts, without any reasoning, that the PTO “was not required to use notice-and-comment rulemaking to devise [a challenged rule] because it is a procedural rule, not a substantive rule.”
Filed August 26, 2009
The holding in Quigg also turned on the fact that no patents on animals had yet been granted and therefore any harm that might occur in the future from such patents was speculative. 932 F.2d at 933. In this case, in contrast, the policy and practice of the USPTO has resulted in patents that have been granted.
Filed October 15, 2010
In fact, none of the cases Enzo cites to support its jurisdiction argument are applicable or instructive. For example, in Animal Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed. Cir. 1991), the Federal Circuit concluded – in stark contrast to the Section 146 context and completely irrelevant here – that a third party lacks standing to intervene in the prosecution of certain patent applications because the law confers no right to non-applicants to object the prosecution of patent applications of others. Likewise, Alberta Telecommunications v. Rambus, Inc., 2006 U.S. Dist. LEXIS 81093 (N.D. Cal. Oct. 24, 2006) is not instructive as it is another action under §291 which has no applicability whatsoever to this §146 action.
Filed September 23, 2009
Id. at 56; see also Animal Legal Defense Fund, 932 F.2d at 937-38. 4 patents that Congress did not choose to provide.
Filed July 13, 2009
The Federal Circuit held that “[a] third party has no right to intervene in the prosecution of a particular patent application to prevent issuance of an allegedly invalid patent.” 932 F.2d at 930. The court further concluded that members of the public are not within the “zone of interests” protected by the patent laws, and as such did not have standing to challenge the USPTO’s application of its policy to patent applicants.
Filed July 13, 2009
See Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 930 (Fed. Cir. 1991). II. THERE IS NO PERSONAL JURISDICTION OVER THE DIRECTORS OF THE UNIVERSITY OF UTAH RESEARCH FOUNDATION
Filed June 17, 2009
Ortho Pharmaceutical Corp. v. Genetics Inst., 52 F.3d 1026, 1033 (Fed. Cir. 1995) (citing Whitmore v. Arkansas, 495 U.S. 149, 154, 109 L. Ed. 2d 135, 110 S. Ct. 1717 (1990); accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992); Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 925, 18 U.S.P.Q.2D (BNA) 1677, 1681 (Fed. Cir. 1991)). When determining if a plaintiff has established subject matter jurisdiction via standing, “the court is empowered to consider matters of fact which may be in dispute.
Filed December 9, 2016
A19. Indeed, courts have determined, for example, that the USPTO is not “required to use notice-and-comment rulemaking” to issue a certain rule because it is “a procedural rule, not a substantive rule.” Actelion Pharm. v. Kappos, 972 F.Supp.2d 51, 58 n.9 (D.D.C. 2013) (citing 5 U.S.C. § 553(b)(A)), aff’d, 565 F. App’x 887 (Fed. Cir. 2014); see Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 931 (Fed. Cir. 1991) (observing that not “every action taken by an agency pursuant to statutory authority [is] subject to public notice and comment,” since such a requirement “would vitiate the statutory exceptions in section 553(b) itself”).10 As the USPTO explained, there would be no benefit to exercising the option of notice- and-comment procedures for MPEP § 1207.04 in particular.
Filed August 26, 2016
Certain exceptions to the notice and comment requirement apply, however, including “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A) (2011); see also Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 927 (Fed. Cir. 1991) (finding that a notice issued by the USPTO was not subject to the APA notice and comment requirements because the notice merely interpreted 35 U.S.C. § 101 and did not represent any change in the law by the USPTO). Thus, “[c]ourts examining section 553 Case 1:10-cv-01142-EGS Document 48 Filed 08/26/16 Page 24 of 31 25 generally refer to rules requiring notice and comment as ‘substantive rules.
Filed September 1, 2010
And the Court is unable to hold that the involved claims of the Enzo ’995 application are unpatentable or that the Enzo ’995 application is unenforceable for prosecution laches because a third party, such as Siemens has no standing to challenge the validity of a pending patent application in district court. Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 930 (Fed. Cir. 1991). A challenge to the validity or enforceability of Enzo’s patent claims is an affirmative defense available to Siemens if and only if Enzo’s patent issues and Enzo decides to assert the patent against Siemens.