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BPAI Clarifies Standard of Review for Examiner’s Rejections
Posted in Litigation, Patents

In its first precedential decision of 2010, the Board of Patent Appeals and Interferences (BPAI) decided in Ex Parte Frye that an Examiner’s rejection is given no deference upon appellate review. Furthermore, the BPAI will not unilaterally review any arguments on a particular issue not specifically presented to the Board by the Appellant. Appellants should thus carefully consider all issues and present thorough arguments in Appeal Briefs to ensure complete BPAI review. Also of note in this case is that USPTO Director Kappos and USPTO Deputy Director Barnes joined the BPAI panel which heard this case. Although high ranking USPTO officials are members of the BPAI, along with administrative patent judges, under 35 U.S.C. § 6(a), the vast majority of BPAI panels consist only of administrative patent judges. Kappos’s and Barnes’s decision to sit on the Frye panel indicates the significance of this case to the USPTO.

For a copy of the Frye opinion, click here.

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