Three new mandamus petitions recently arrived at the Federal Circuit, each attempting to navigate around the court's November 6 decisions that rejected challenges to the USPTO's expanded use of discretionary denials. The new petitions raise arguments their counsel contend are distinct from those already rejected in In re Motorola Solutions, Inc., No. 2025-134 (Fed. Cir. Nov. 6, 2025) (precedential).
The petition argues that Dir. Stewart's novel denial criteria were imposed without the notice-and-comment rulemaking required by the Administrative Procedure Act, exceed the Director's statutory authority under 35 U.S.C. § 314(a), and were applied retroactively to Instacart's petition in violation of due process. The petition argues that the NPRM is tacit admission of the rulemaking requirement.
