Spotlight On Upcoming Oral Arguments – March 2018

Article by Alex Poonai

Monday, March 5, 2018

Hyatt v. PATO, No. 17-1722, Courtroom 201

In this appeal, the Federal Circuit will consider whether the PTO exceeded its authority under the Patent Act by promulgating MPEP § 1207.04. Hyatt argues that MPEP § 1207.04, which governs the reopening of prosecution after appeal, conflicts with the Patent Act and was promulgated in excess of the PTO's statutory authority because it improperly enables the PTO to delay the appellate process by allowing examiners to reopen prosecution. The PTO argues that it has the inherent authority to reopen prosecution. The PTO further argues that the reopening of prosecution does not constitute a "final agency action," and is therefore not a reviewable decision under the APA.