Precedential PTAB Opinions To Drive APA Challenges

Precedential Opinions & Trial Guide?

The Federal Circuit's en banc opinion in In re Aqua Products was as massive as it was unfulfilling. This was due, in part, to the court's struggle with how to weigh policy of the agency that was not based upon the traditional notice-and-comment rule making of the Administrative Procedure Act (APA). Given the significant hurdles in issuing such rules (especially under the Trump administration's 2-for-1 cancellation requirements) it is certainly understandable that an increasing amount of the agency's guidance on AIA trial practice is provided by way of precedential Board decisions, and such documents as the Trial Practice Guide.

Yet, when the public is held to standards that were not promulgated in accordance with traditional APA practices, the Federal Circuit is left to decide what if any deference should be applied to such policies.