Yes. For example, some U.S. Patent Examiners will glom onto irrelevant/non-precedential court cases handed down by the Federal Circuit or the U.S. Supreme Court (i.e., cases that were especially damning to the patent owner or patent Applicant) and cite those cases as authoritative, despite glaring differences in the fact-patterns and/or legal issues presented.
In fact, this was happening so often with respect to the non-precedential decisions Smartgene, Cyberphone, and Planet Bingo that the U.S. Patent Office had to issue a memo cautioning Examiners to rely on such cases.
That November 2, 2016 memo states:
"Non-precedential decisions: Finally, given the large and ever-increasing number of precedential decisions, examiners should avoid relying upon or citing non-precedential decisions (e.g., SmartGene, Cyberfone) unless the facts of the application under examination uniquely match the facts at issue in the non-precedential decision. The updated chart of court decisions available on the USPTO' s SME Webpage indicates whether a decision is precedential or non precedential."
More information on this can be found at the Bilski Blog at Fenwick West:
www.bilskiblog.com/blog/2017/06/examiner-citations-of-smartgene-cyberfone-drop-after-mcro-memo.html#page=1
In fact, this was happening so often with respect to the non-precedential decisions Smartgene, Cyberphone, and Planet Bingo that the U.S. Patent Office had to issue a memo cautioning Examiners to rely on such cases.
That November 2, 2016 memo states:
"Non-precedential decisions: Finally, given the large and ever-increasing number of precedential decisions, examiners should avoid relying upon or citing non-precedential decisions (e.g., SmartGene, Cyberfone) unless the facts of the application under examination uniquely match the facts at issue in the non-precedential decision. The updated chart of court decisions available on the USPTO' s SME Webpage indicates whether a decision is precedential or non precedential."
More information on this can be found at the Bilski Blog at Fenwick West:
www.bilskiblog.com/blog/2017/06/examiner-citations-of-smartgene-cyberfone-drop-after-mcro-memo.html#page=1
RSS Feed