En Banc Oral Argument in Taylor v. McDonough

by Bill Vobach

The Federal Circuit sat en banc last week via telephone in Taylor v. McDonough. This case is an appeal from the U.S. Court of Appeals for Veterans Claims. The factual background is quite fascinating and in a nutshell concerns a denial of benefits to a veteran who signed a secrecy oath during his active service when he volunteered to be a guinea pig for the testing of chemical warfare agents, back in the 1960’s. The secrecy oath later hindered his ability to make a claim for benefits as a veteran.

Judge Wallach authored an opinion for the court in the earlier panel decision prior to en banc review. For further background of the case, you can read that opinion here: [Link]. You will hear Judge Wallach during the oral argument. Because he served on the original panel, Federal Circuit rules allow him to take part in the en banc appeal even though he has assumed senior status.

You can listen to the Taylor v. McDonough oral argument here:

Some further background articles:

Operation Delirium: [Link]

‘Operation Delirium:’ Psychochemicals And Cold War [Link]

Edgewood Arsenal human experiments. [Link]


One aspect of this case is that Mr. Taylor signed a secrecy oath. On a wholly unrelated note, my impression is that Administrative Patent Judges are required to take an oath or make a declaration that they will apply the law. So, in view of that judicial oath, what is an APJ to do in the future if the Director’s orders or interpretation of precedent contradict the APJ’s personal interpretation of the law? If the en banc Federal Circuit in deciding Taylor v. McDonough hangs its hat on the inviolability of a secrecy oath, what will the implications be for the PTAB judges and the operations of the USPTO with respect to a judicial oath?

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