Oral Argument of the day: In re Burgos

The oral argument of the day is from In re Burgos.  This oral argument was particularly interesting for its discussion of the Supreme Court’s Funk Bros. decision.  Also, there was some discussion of the USPTO’s subject matter eligibility examples.  This is a good oral argument to listen to closely.  See if you think the argument presented by the Office is based entirely on the findings and reasoning of the PTAB — or are views of the “Office” or “Solicitor’s Office” interjected to supplement the argument.  Shouldn’t the CAFC be basing its review only on the reasoning and facts relied upon by the PTAB.

You can listen to the oral argument here:


You can review the Rule 36 Judgment [here].

The invention sounds interesting.  I downloaded the original application from Public Pair.  It is available [here].

Update March 31, 2018

I am having a bit of “poster’s remorse” after publishing the above post and listening to the oral argument again.  I think the Associate Solicitor actually did a nice job of repeatedly trying to bring the panel back to the reasoning and factual findings of the PTAB.  The Federal Circuit panel on the other hand framed a lot of their questions in terms of “What is the Office’s position . . .” with respect to hypotheticals and the Office’s subject matter eligibility examples.  That’s all well and good; but, at the end of the day review of agency determinations are supposed to be based on the reasoning and factual findings of the agency tribunal, namely the PTAB.



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