It is kind of interesting to compare the recent statement in Trust ID v. Next Caller by the Federal Circuit — an intermediate appellate court, rather than a court of last resort — with the Federal Circuit’s Rule 36 practice.
“[T]he Board is obligated to provide an administrative record showing the evidence on which the findings are based, accompanied by the agency’s reasoning in reaching its conclusions.” Alacritech, Inc. v. Intel Corp., 966 F.3d 1367, 1370 (Fed. Cir. 2020) (quoting TQ Delta, LLC v. Cisco Sys., Inc., 942 F.3d 1352, 1358 (Fed. Cir. 2019)). “We do not require ‘perfect explanations,’ and ‘we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.’” Id. at 1370–71 (quoting NuVasive, 842 F.3d at 1382–83). “We do, however, require that the Board’s own explanation be sufficient ‘for us to see that the agency has done its job.’” Id. (quoting NuVasive, 842 F.3d at 1383). Here, the Board merely partially reiterated and summarily rejected Next Caller’s arguments without explanation. This is not sufficient under the APA and our precedent. NuVasive, 842 F.3d at 1383 (explaining that the Board cannot “summarize and reject arguments without explaining why [it] accepts the prevailing argument.”). Thus, while there is no legal basis to require that the Board have deferred to the examiner’s reasoning, the Board did need to have provided its own reasoning.
TrustID, Inc. v. Next Caller, Inc., 2020-1950 (Fed. Cir. September 27, 2021)(slip op. at 18).