“Why didn’t you walk it back”

In the recent decision of In re Facebook, the Federal Circuit reversed the Board’s rejection.  One has a clear sense from listening to the oral argument that the PTO is not going to prevail — and it did not prevail.  What is interesting to me is that Judge Moore asks the Solicitor’s Office during the oral argument why didn’t you “walk it back.”

The implication in the question is that the Solicitor’s Office somehow has authority to challenge the decision of the Board.  That seems to be an unresolved issue — does the Solicitor’s Office of the PTO have the authority to challenge a Board decision of the PTO.  If so, where is that authority spelled out?  Personally, I think I would rather have the Federal Circuit have to deal with a few bad decisions by the Board, than frustrate the judicial independence of the Board by granting oversight authority to the Solicitor’s Office.

You can listen to the entire oral argument here:

You can read the court’s opinion here: [Link].


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