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Have Board Proceedings In Interferences Been Reduced to “Trial Runs” Which a Dissatisfied Party May “Do Over” in District Court?1

By Charles L. Gholz2 and Lisa M. Mandrusiak 3


The opinion of Senior District Judge Young of the United States District Court for the District of Massachusetts in Troy v. Samson Mfg. Corp., No. 11-10384, 2013 U.S. Dist. LEXIS 61445 (D. MA. April 30, 2013), is well calculated to bring a tear to the eye of the most hardened member of the interference bar. After discussing Kappos v. Hyatt, 566 U.S. ____, 132 S. Ct. 1690, 102 USPQ2d 1337 (2012), he concludes that, in light of that opinion:

The Court must consider Troy’s newly proffered evidence, as its availability vel non at the time of the Board proceedings does not preclude its admission.4
4 Board proceedings are thus reduced to “trial runs,” which a dissatisfied party may “do over” in district court. While this makes little practical sense and flies in the face of the usual tenets of administrative and civil procedure - which uniformly seek to narrow the issues for resolution - I am but a district judge, and “Theirs not...

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