Oral Argument of the Month

The oral argument of the month for the month of February is Regents of the University of Minnesota v. Kappos, 2010-1321 (Fed. Cir. Feb. 11, 2011).  This case concerned a valuable patent that had gone abandoned due to failure to pay a maintenance fee. The docket clerk had apparently entered “abandoned” into the University’s docketing system. (From listening to the oral argument, I’m under the impression this might have occurred when the patent was surrendered as part of a reissue filing.) Once the error was discovered more than 2.5 years after expiration, the University was faced with an “unavoidable” standard in order to have the patent reinstated.

The Board apparently placed great weight on how much training and supervision the docket clerk received.  And, much of the oral argument concerned these issues.  For example, the docket clerk was apparently not supervised by a registered patent attorney but rather by an administrator (who was also an attorney).  I think the oral argument is worth a listen by any organization that has a docketing system — particularly those patent owners who choose to handle their docket themselves.  Such organizations might be well-advised to memorialize their training efforts and to periodically send docket clerks to training seminars.

This might also point to a business opportunity for those organizations that provide in-person or on-line patent seminars.  Seminars for docketing clerks could be in high-demand.

Unfortunately, the court only issued a Rule 36 opinion.  I think the patent bar would have appreciated a little more clarification from the court on these issues.

The oral argument is available here: [Listen].

The Rule 36 opinion is available here: [Read].

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