Opinion
No. 96-1258
July 3, 1997
Appealed from U.S. Patent and Trademark Office Board of Patent Appeals and Interferences United States Court of Appeals for the Federal Circuit.
A. Sidney Johnston, Corporate Law Department, Digital Equipment Corporation, Maynard, Massachusetts, filed Appellants' Opposition to Corrected Petition for Rehearing and Suggestion for Rehearing In Banc by Appellee. With him on the opposition was Ronald C. Hudgens. Also on the opposition was Janice M. Mueller, Assistant Professor of Law, Suffolk University Law School, Boston, Massachusetts and John F. Sweeney, Israel Blum and Michael O. Cummings, Morgan Finnegan, L.L.P., of New York City.
Nancy J. Linck, Solicitor, Albin F. Drost, Deputy Solicitor, Karen A. Buchanan, Kenneth R. Corsello, Associate Solicitors, Office of the Solicitor, of Arlington, Virginia, filed Corrected Petition for Rehearing and Suggestion for Rehearing In Banc, for Appellee.
ORDER
The Commissioner of the U.S. Patent and Trademark Office has petitioned this court to rehear this case in banc. We hereby grant the Commissioner's petition and order the parties to file additional briefs directed to the following question:
Should this court review Patent and Trademark Office fact-findings under the Administrative Procedure Act standard of review instead of the presently applied "clearly erroneous" standard?
The principal briefs shall not exceed 35 pages and any reply brief filed shall not exceed 20 pages. The Commissioner shall file his opening brief within 60 days after the date of this order. Zurko et al. shall file their responsive brief within 60 days after service of the Commissioner's opening brief. Any reply brief filed by the Commissioner shall be filed within 20 days after service of Zurko et al.'s responsive brief. Oral argument will be held on December 2, 1997, at 2:00 p.m.
The court invites any interested party to file a brief in accordance with Rule 29 of the Rules of Practice of this court.