Tafas and the Future of Patent Administrative Law

My colleague Kali Murray has a new working paper on SSRN, First Things, First: A Principled Approach to Patent Administrative Law. Kali analyzes a controversial recent decision from the Eastern District of Virginia in Tafas v. Dudas. In the Tafas decision, currently on appeal in the Federal Circuit, the lower court rejected new rules adopted by the U.S. Patent and Trademark Office that limit the ability of patent applicants to file continuation applications. As Kali demonstrates, Tafas opens up deep questions about the extent to which the PTO is subject to normal principles of administrative law. Kali thinks it is indeed time to engage in a fundamental reconsideration of the relationship between patent law and administrative law. Her paper concludes with some helpful suggested principles to guide such a reconsideration.

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