Petition for Certiorari – Patent Case 01-438 - Federal Rule of Civil Procedure 52(a)

By James Constant

Legal Standards of review. Substantial evidence standard under 5 United States Code 706 and the clearly erroneous standard under Federal Rule of Civil Procedure 52(a). Petition denied without reason.

• Language: English
• Publisher: James Constant
• Release date: Jul 4, 2013
• ISBN: 9781301616688

James Constant

writes on law, government, mathematics and science, as they are and as they should be

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Petition for Certiorari – Patent Case 01-438 - Federal Rule of Civil Procedure 52(a)

By James Constant

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Copyright © 2001 by James Constant

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No. 01-438

_____________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

JAMES CONSTANT Petitioner,

v.

COMMISSIONER OF PATENTS AND TRADEMARKS Respondent.

On PETITION FOR WRIT Of CERTIORARI

To The UNITED STATES COURT Of APPEALS For The FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

James Constant

Pro-per Petitioner

______________________________ i ___________________________

QUESTIONS PRESENTED FOR REVIEW

Did the Federal Circuit review the Patent Office decision impermissibly under the clearly erroneous standard of Federal Rule of Civil Procedure 52(a) and thus nullify the substantial evidence standard required by 5 USC 706?

Does the substantial evidence standard of 5 USC 706 dictate a different outcome of judgment than does the clearly erroneous standard of Federal Rule of Civil Procedure 52(a)?

Is the clearly erroneous standard of Federal Rule of Civil Procedure 52(a) so vaguely defined making its use inherently arbitrary?

Does the judiciary share with Congress the power to make the clearly erroneous standard of Federal Rule of Civil Procedure 52(a)?

Is the clearly erroneous standard of Federal Rule of Civil Procedure 52(a) necessary and proper for carrying into execution the power to promote the progress of science?

_____________________________________ ii _______________________________

TABLE OF CONTENTS

OPINIONS BELOW ..... 1

JURISDICTION ...... 2

STATUTORY PROVISIONS INVOLVED ...2

STATEMENT OF THE CASE .... 3

REASONS FOR GRANTING THE WRIT ...3

A. STANDARDS OF REVIEW .................. 3

Federal Circuit Practice .......................... 4

Differences Between Standards ............. 5

Federal Circuit Nullifies 5 USC 706......... 7

Anomalous Rule 52(a) ............................ 8

B. DIFFERENT OUTCOME DICTATED

BY SUBSTANTIAL EVIDENCE STANDARD .......................................... 10

Evidence Considered .............................. 10

Evidence Overlooked .............................. 11

Graham Factors Overlooked .................... 12

Legal Conclusions Under 5 USC 706 ...... 15

Objections Overlooked ............................ 16

CONCLUSIONS ............................................ 17

_____________________________________ iii ______________________________

INDEX TO APPENDIX

A. Decision of the Federal Circuit affirming the PTO's decision of obviousness.

B. Decision of the Federal Circuit denying petitioner's Petition for Rehearing.

C. Decision of Board of Patent Appeals affirming the Examiner's decision of obviousness.

D. Decision of the Board of Patent Appeals granting petitioner's Request for Rehearing