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Expert Analysis

Fed. Circ. Is Permitted To Use Rule 36 For USPTO Appeals

Law360, New York ( March 7, 2017, 12:29 PM EST) -- An intriguing argument has recently been advanced, based on a novel theory about the permissibility of so-called "Rule 36 affirmances." One commentator had contended that the Federal Circuit's use of "Rule 36 affirmances" in appeals from the U.S. Patent and Trademark Office violates statutory mandates established by Congress in 35 U.S.C. § 144 and 15 U.S.C. § 1071(a)(4).[1] As the argument goes, because those two statutory provisions state that the Federal Circuit "shall issue to the Director its mandate and opinion,"[2] the Federal Circuit must write an opinion in every such appeal and cannot simply use a one-word Rule 36 affirmance....

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