Monday, January 13, 2020

Judge Newman issues stirring dissent in Biodelivery Sciences

On 13 January 2020, the CAFC denied a petition for en banc review in Biodelivery v. Aquestive:

The petition for panel rehearing is denied.
The petition for rehearing en banc is denied.
The mandate of the court will be issued on January 21,

From the beginning of Judge Newman's dissent:

The court has declined to rehear this appeal en banc. I
write because of the significance of the balance of agency
and judicial authority, and the rules of procedural law in
the administrative state.

From the end of Judge Newman's dissent:

Of further concern is the PTAB’s contravention of the
purpose of the America Invents Act, to provide agency expertise
to resolution of patentability issues. See H.R. Rep.
No. 112–98, pt. 1, at 48 (2011) (“[T]he purpose of the [postgrant
review proceedings is to] provid[e] quick and cost effective alternatives to litigation.”); 157 Cong. Rec. S1352
(daily ed. Mar. 8, 2011) (statement of Sen. Udall) (“These
proceedings are intended to serve as a less-expensive alternative to courtroom litigation and provide additional access
to the expertise of the Patent Office on questions of patentability.”). On this background, the PTAB’s explanation of
agency efficiency and cost is curious, as litigation cost was
a primary concern of the America Invents Act.


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