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9531 West 78th St., Suite 400
Eden Prairie, MN 55344
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Hyatt V. Kappos – Evidence That Can Be Presented In A Civil Action Under 35 USC 145

If you have received an unfavorable decision from the Board of Patent Appeals and Interferences (Board), you have two options for review of the decision.  One option is to file an appeal with the Federal Circuit.  Another option is to file a civil action in the United States District Court for the District of Columbia under 35 U.S.C. §145.  If you want to present evidence that was not considered by the United States Patent and Trademark Office (USPTO), then the only option is to file a civil action under 35 U.S.C. §145 since the Federal Circuit reviews the Board’s decision based on the record before the USPTO.  A recent en banc decision by the Federal Circuit held that the only limitations on the evidence that can be presented in a civil action filed under 35 U.S.C. §145 are the evidentiary limitations contained in the Federal Rules of Evidence and the Federal Rules of Civil Procedure (Hyatt v. Kappos, Fed. Cir. 2010, en banc).  Therefore, even though in most circumstances issues not considered by the USPTO cannot be raised in the civil action, if new evidence on an issue is introduced the district court will review the issue de novo.

Jennifer Buss is an intellectual property lawyer and associate at the Eden Prairie law firm of Vidas, Arrett & Steinkraus, PA.   www.vaslaw.com

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