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The PTAB is Not an Article III Court: A Primer on Federal Agency Rule Making

By David E. Boundy

©2017. Published in Landslide, Vol. 10, No. 2, November/December 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

What rules may the United States Patent and Trademark Office (USPTO) promulgate? What procedures must the agency follow when it promulgates a rule? What effect do various rules have? Some are binding against the public, some are only hortatory. Some require extensive rule making procedure, some can be promulgated with the stroke of a pen. Some are unilateral in binding only agency employees but not the public. And some are simply invalid. How is agency rule making power different than an Article III court’s?

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