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Replies to post #75204 on UnifiedOnline Inc fka UOIP
SonamKapoor
12/06/19 4:50 PM
#75205 RE: BrokeAgent #75204
If this Court concludes in Thryv that Section 314(d) precludes judicial review of the USPTO’s Section 315(b) determinations on appeal from a final written decision, that holding would provide an additional ground for concluding that the Federal Circuit lacked jurisdiction to review petitioner’s challenges to the USPTO’s noninstitution decisions here. But even if this Court renders a contrary holding in Thryv, its decision is unlikely 14 to cast doubt on the Federal Circuit’s dismissal of petitioner’s appeals. The question in Thryv is whether, in exercising its jurisdiction to review the Board’s final written decision on the merits of patentability, the court of appeals can consider the patent holder’s contention that Section 315(b) barred the review. Here, by contrast, the Board never issued an appealable final written decision because the USPTO declined to institute the requested review. Because the Board never issued a final written decision, this case (unlike Thryv) does not present any questions concerning the scope of the Federal Circuit’s review authority under Section 319. And as explained above, the Federal Circuit’s decision in this case rests on the independent ground that no provision in the AIA or the APA affirmatively authorizes judicial review of the USPTO’s non-institution decision. Dismissal of the appeals on that ground was correct, regardless of whether or how Section 314(d) applies to Section 315(b) determinations. There is accordingly no need for the Court to hold the petition in this case pending the Court’s disposition of Thryv. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. NOEL J. FRANCISCO Solicitor General JOSEPH H. HUNT Assistant Attorney General MELISSA N. PATTERSON SARAH E. WEINER Attorneys DECEMBER 2019