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<p>Hello fellow e-trademarks listserv members. <br>
</p>
<p>As you know, the USPTO has in recent years tended to push the
limits of, some would say has tended to ignore, the Administrative
Procedure Act. This is the law that we all studied in our Admin
Law class in law school, that sets boundaries on what a government
agency can do by means of rulemaking (as opposed to convincing
Congress to change the law) and that imposes requirements on the
agency in terms of how it does its rulemaking.</p>
<p>One aspect of the APA relates to what kinds of rules fall into
the category of rules that an agency can promulgate without even
the need to do "notice and comment". It relates to what counts as
procedural and what counts as substantive.</p>
<p>Recently, in the case of <i>In re Chestek, </i>a three-judge
panel of the CAFC got what must surely have been the wrong answer
on this, stating (oversimplifying only a little) that the USPTO is
no longer required to do "notice and comment" when it promulgates
new rules.</p>
<p>Imagine how this might embolden the USPTO, going forward. </p>
<p>The appellant in <i>In re Chestek </i>is today filing a
petition for <i>certiorari</i> at the US Supreme Court. What
would need to happen next is for the US Supreme Court to grant
cert. As we all learned in law school, this is not a sure thing.
The US Supreme Court does not always grant cert, when asked to do
so.</p>
<p>This leads to the "asks" of this listserv posting.</p>
<p><i><b>A first ask </b></i>is, are there perhaps one or two among
us on this listserv who have expertise and interest in helping to
draft an <i>amicus </i>brief in support of the cert petition,
urging a grant of the cert petition, on behalf of a modest number
of interested members of this e-trademarks listesrv. This would
not be as hard as one might think -- one can crib from plenty of
past <i>amicus </i>briefs in support of cert petitions. <br>
</p>
<p>Such a brief has to be printed after having been formatted for
printing. I am delighted to report that there are companies who
do this stuff, and whoever would volunteer to help draft the brief
would not need to handle formatting or printing.</p>
<p>If you might have expertise and interest, feel free to post to
the listserv or drop me a note privately.<br>
</p>
<p><i><b>A second ask</b></i> is whether listserv members can please
encourage other groups to file an <i>amicus</i> brief in support
of the cert petition. This would include the usual suspects such
as AIPLA and ABA/IPL and INTA and IPO. Also NAPP.</p>
<p>Feel free to drop me a note privately to let me know of your work
in this area.</p>
<p>Carl<br>
</p>
<p><br>
</p>
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