12/25/2023 0 Comments Robert miller veeerThe Interstate Commerce Commission ("ICC"), in a ratemaking proceeding involving competing claims by Northern and Southern railroads, determined that the costs of North-South traffic were fairly represented by territorial average costs. 2 The Supreme Court rejected an agency's attempt to rely on its own expertise in a contested proceeding in Baltimore & Ohio R.R. However, in a contested proceeding involving "resolution of conflicting private claims to a valuable privilege," it is particularly important that the agency's decision on issues of fact be limited to the written record made before the agency. The fact that section 706 of the APA requires that the Board's decision be reviewed on the record does not directly answer the question whether the Board's decisions may be based on the Board's substantive expertise reflected in the record. We concluded that findings of fact by the Board must in all cases be supported by substantial evidence in the record. § 144 ("The United States Court of Appeals for the Federal Circuit shall review the decision from which an appeal is taken on the record before the Patent and Trademark Office.") (emphasis added). § 144 directs us to review "on the record" the decisions of the Board. ![]() unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute." Gartside, 203 F.3d at 1311 5 U.S.C. hold unlawful and set aside agency action, findings, and conclusions found to be. We noted that APA § 706 provides that " he reviewing court shall. We first considered that question in Gartside, an appeal from a Board interference proceeding. The Supreme Court in Dickinson did not decide which of the several standards of review in APA § 706 applies to PTO proceedings. The Board further held that " he ability of the bugle-headed screw dogs to tightly clamp the flitch would have been readily apparent." Id.Īlthough PTO proceedings are not formal adjudications governed by §§ 556 and 557 of the APA, the Supreme Court has held that our review of those proceedings is governed by another section of the APA, § 706. The Board did not cite any testimony or record evidence to support its conclusion. would have recognized suitability for securely supporting a tapered flitch in the position depicted in. The Board reasoned that "one skilled in the art. The Board nonetheless held that Miller had established derivation based on the combination of MX20. While Brand was aware that the bugle-headed dogs depicted in MX2002 were intended as substitutes for standard dogs, the Board rejected as uncorroborated the testimony of Miller that he explicitly told Brand how to practice the invention of the count by using the bugle-headed dogs to support a tapered flitch. The Board addressed whether Miller had proven that Brand derived the invention 867 from Miller based on the information in Miller Exhibits 20, either separately or taken together. ![]() Miller has not raised this issue on appeal. The Board concluded that, since Junior Party Miller failed to prove it reduced to practice first, it failed to establish that it was entitled to an award of priority as the party first to conceive and first to reduce to practice. The Board held that Miller failed to prove an actual reduction to practice prior to Brand's May 31, 1995, benefit date. The Board held that Miller's conception date was no earlier than October 27, 1994, and denied Miller's attempt to amend its priority statement to claim an earlier date. The Board first addressed Miller's argument that it was first to conceive and first to reduce to practice, and determined the respective conception and reduction to practice dates of Brand and Miller. Miller argued it was entitled to priority as the party first to conceive and first to reduce to practice, and also argued it was entitled to priority because Brand derived the invention from Miller. 1 Miller, the 866 Junior Party, made two arguments for priority. In the interference proceeding, Brand was the Senior Party, having filed his application on May 31, 1995.
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