Peter v. NantKwest, Inc.
The R Street Institute (the “Institute”), arguing in support of the PTO, claims that patent applicants can appeal rejected applications through administrative proceedings that are just as effective as a § 145 action. The Institute asserts that filing a continuation application or requesting a continued examination—the two main administrative proceedings available to applicants—largely entail the same benefits of bringing a § 145 action. For example, explains the Institute, applicants can introduce new evidence and expert testimony in continuation applications. In addition, asserts the Institute, the administrative processes provide mechanisms for addressing problems presented by difficult examiners. The Institute explains that applicants can call on supervisory examiners for assistance or utilize the PTO Ombudsman program “when normal channels are not providing satisfactory results.” The Institute maintains that these procedures are analogous to the forum-shopping “benefit” associated with § 145 suits. The Institute moreover argues that patent applicants have “no right to a judicial determination of patentability.” As the Institute explains, the granting of a patent is a matter of “public rights” and thus both the legislature and the executive are competent to review patent applications. The Institute furthermore claims that even if a right to judicial determination exists, the availability of § 141 actions fulfills that right.
