Return Mail, Inc. v. United States Postal Service, U.S., No. 17-1594, amicus brief supporting a petition for certiorari, filed 12/17/2018. December 17, 2018

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The Federal Circuit erroneously held that the government is a “person” under 35 U.S.C. §321(a) for purposes of petitioning the Patent Trial and Appeal Board to review the validity of a patent in a covered business method proceeding, AIPLA argued to the Supreme Court in a December 17, 2018 amicus brief.

The brief cited case law and the Dictionary Act at 1 U.S.C. 1 for the position that the word “person,” absent an “affirmative showing of statutory intent to the contrary,” excludes the government and its agencies. 

It notes that the Patent Act expressly names the government in 35 U.S.C. §207 to establish its status as a patent owner, and that the same explicit reference should be required for it to be eligible to use the AIA post-grant processes to review patent validity.