Appeal No. 96-2905
Application No. 29/008,076
JOHN D. SMITH, Administrative Patent Judge, concurring.
I concur in the result reached by the majority, but I
write separately because I believe the majority's reliance on
Alappat is inapposite to the issue of concern to appellant,
i.e., that the expansion of this panel has deprived appellant
of a property right without due process of law. The relevant
issue confronted in Alappat was whether the Alappat Board's
reconsideration decision was statutorily valid under 35 U.S.C.
141 "over which the court could exercise subject matter
jurisdiction pursuant to 28 U.S.C. § 1295 (a)(4)(A) (1988) and
35 U.S.C. § 141 (1988)." See Alappat, 33 F.3d at 1530, 31
USPQ2d at 1546. The issue of due process of law was not
germane to the jurisdictional issue in Alappat. Thus, as
stated by Judge Rich in Alappat, 33 F.3d at 1536, 31 USPQ2d at
1551:
Amicus Curiae FCBA suggests that the Commissioner's
redesignation practices in this case violated Alappat's
due process rights, citing Utica Packing Co. v. Block,
781 F.2d 71 (6th Cir. 1986). In addition, an issue was
raised at oral argument as to whether the Commissioner's
designation practices are governed by any provisions of
the Administrative Procedure Act (APA), and if so,
whether the Commissioner's actions in this case violated
any of these provisions. We need not address either of
these issues.
The FCBA does not have standing to make a due
process argument, see Broadrick v. Oklahoma, 413 U.S.
601, 610 (1973) ("constitutional rights are personal and
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