Today the Federal Circuit granted a motion regarding our Amicus Brief in the case between Hyatt and the USPTO regarding improper re-opening of prosecution under MPEP 1207.04. The original panel decision affirmed the MPEP procedure which enables an examiner to re-open prosecution responsive to an applicant’s appeal brief as many times as they want, thereby preventing the applicant from ever reaching the appeal board (PTAB). Many commentators found the decision concerning (see the IPLaw360 article), and Hyatt has filed a petition for rehearing and rehearing en banc.

McCoy Russell’s Amicus Brief (linked above) strongly supports the request to enable the Federal Circuit to reconsider their decision, especially in light of the binding Supreme Court precedent which they failed to consider (that confirms an applicant’s right to appeal) and the serious unfair practical impacts of the MPEP rule.