Reexamination : CAFC Alert

CAFC Decision Reaffirms In Re Swanson while Dissent Raises Constitutional Questions Over Res Judicata and Issue Preclusion

Michael Caridi | December 14, 2011

In Re Construction Equipment Company, U.S. Court of Appeals for the Federal Circuit 2010-1507

Appeal from the United States Patent and Trademark Office, Board of Patent Appeals and Interferences.

(Reexamination No. 90/008,477)

Decided: December 8, 2011



Court gives a brief precedential decision affirming a finding of obviousness for a much fought over patent.  The decision is more a re-affirming of In re Swanson given the long litigation history of the patent-at-issue than a decision on legal merits of the BPAI’s finding of obviousness.  The lengthy dissent of Judge Newman is highly critical of allowing a re-examination of a patent that had been hotly litigated for years in the judicial branch with an opposite outcome.

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CAFC rejects BPAI’s “thrust of rejection” argument

Thomas Brown | December 1, 2011


(Reexamination Nos. 90/006,824 and 90/007,619)

(CAFC, October 5, 2011)


Before DYK, FRIEDMAN, and PROST, Circuit Judges. PROST, Circuit Judge.


Patentee appeals the Examiner’s final rejection on reexamination.  On appeal, the BPAI affirms the Examiner’s obviousness rejection for essentially the same reasons, but treats the primary reference as prior art under §102(a) in contrast to the Examiner’s reliance on the primary reference as prior art under §102(b) in the Examiner’s answer.  However, the BPAI does not issue a new ground of rejection, since the thrust of the rejection was the same as the Examiner’s rejection.  The Patentee appeals to the CAFC asserting the need for a full and fair opportunity to litigate the BPAI’s actual basis of rejection.  The CAFC rejects the BPAI’s thrust of the rejection argument, vacates the BPAI’s decision and remands with instructions to designate its rejection as a new ground of rejection.

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