The Burdens of Proof and Persuasion in a 35 USC 146 Action (PDF)
While 35 USC 146 actions are often loosely referred to as permitting "de novo" review, it is more accurate to term them "quasi-de-novo" review. Neither party is starting from a clean slate. To the extent that either party is trying to get the court to disagree with a holding by the board, it is fighting an uphill battle. How steep is the incline of that hill, and does the steepness vary depending on the issue in play?
Charles L. Gholz is a Partner in Oblon, Spivak, McClelland, Maier & Neustadt, LLP; Alexandria, Virginia. His direct dial telephone number is 703/412-6485, and his email address is email@example.com.
John F. Presper is a Senior Associate in Oblon, Spivak, McClelland, Maier & Neustadt, LLP; Alexandria, Virginia. His direct dial telephone number is 703/412-3536, and his email address is firstname.lastname@example.org.
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