Filing an application with the United States Patent and Trademark Office (USPTO) can be an arduous process. If rejected, applicants can appeal to the Board of Patent Appeals and Interferences (BPAI). From there, unsuccessful applicants can refile or take their cases to court, either filing in district court or appealing directly to the Federal Circuit. Historically, experts say, only a small percentage of applicants file in district court, but some predict that may change as a result of a recent Federal Circuit decision.
The Federal Circuit’s Nov. 8 decision in Hyatt v. Kappos affirms that patent applicants are allowed to enter new evidence in a Section 145 civil action filed in response to a USPTO decision to deny patent rights. In a 6-2-1 en banc decision, the Federal Circuit reversed an earlier panel ruling that limited the admissibility of new evidence in such cases.
