Pursuing rehearing and rehearing en banc in the “no more notice-and-comment needed” opinion

As I described in this blog article, I fear that a recent opinion from a three-judge panel of the Court of Appeals for the Federal Circuit will signal to the USPTO that going forward, it can duck the APA’s notice-and-comment requirements by arbitrarily deeming any rulemaking it does as merely “procedural”.

It seems to me that what needs to happen next is a rehearing, or a rehearing en banc, at the Federal Circuit, on this case (In re Chestek PLLC, February 13, 2024, slip opinion).

Two things are, I think, needed if this petition is to move forward and if it is to have a reasonable chance of success.

Pledging funds.  The applicant incurred substantial expense pursuing the appeal this far and, I believe, is only going to be able to pursue rehearing if there is support from the IP community.  Earlier today I set up a pledge system by which members of the IP community may pledge support.  As of right now there are nine pledges adding up to $6K.  I believe the applicant will only be able to proceed if at least $35K is pledged.

Committing to amici.  I think that for a reasonable chance of success, there will need to be cogent amicus briefs alerting the Federal Circuit to how much unchecked power this puts in the hands of the PTO.  This would hopefully include briefs from the relevant professional associations.  I am aware of two amicus commitments thus far from members of the IP community.

I invite readers to pledge contributions toward this petition effort.

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