[E-trademarks] Who would like to assist with an amicus brief in support of the Chestek cert petition?

[Carl Oppedahl]

Hello fellow e-trademarks listserv members.

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.

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.

Recently, in the case of /In re Chestek, /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.

Imagine how this might embolden the USPTO, going forward.

The appellant in /In re Chestek /is today filing a petition for 
/certiorari/ 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.

This leads to the "asks" of this listserv posting.

/*A first ask */is, are there perhaps one or two among us on this 
listserv who have expertise and interest in helping to draft an /amicus 
/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 /amicus /briefs in support of cert 
petitions.

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.

If you might have expertise and interest, feel free to post to the 
listserv or drop me a note privately.

/*A second ask*/ is whether listserv members can please encourage other 
groups to file an /amicus/ 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.

Feel free to drop me a note privately to let me know of your work in 
this area.

Carl


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://oppedahl-lists.com/pipermail/e-trademarks_oppedahl-lists.com/attachments/20240513/83dd42ee/attachment.htm>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: smime.p7s
Type: application/pkcs7-signature
Size: 4514 bytes
Desc: S/MIME Cryptographic Signature
URL: <http://oppedahl-lists.com/pipermail/e-trademarks_oppedahl-lists.com/attachments/20240513/83dd42ee/attachment.p7s>