Appeal No. 96-2905
Application No. 29/008,076
may not be asserted vicariously") and United Parcel
Service, Inc. v. Mitchell, 451 U.S. 56, 60 n.2 (1981)
(amicus may not rely on new arguments not presented
below), and Alappat has waived any due process argument
by acquiescing to the Commissioner's actions in this
case. Thus, there is no case or controversy before this
court with respect to any alleged due process violation.
There also is no case or controversy as to whether the
Commissioner's actions in this case violated any
provision of the APA, given that Alappat does not contest
these actions, and this is not an issue which this court
may raise sua sponte. Moreover, neither of these issues
is germane to the jurisdictional issue this court raised
sua sponte, i.e., whether the Board's reconsideration
decision constituted a statutorily valid decision under
35 U.S.C. § 141 over which this court may exercise
subject matter jurisdiction pursuant to 28 U.S.C. §
1294(a)(4)(A).
Here, appellant has not waived any due process argument.
Nevertheless, I am not aware of any factual basis to assert
that appellant's due process rights were violated by the
expansion of the panel which was, to my knowledge, properly
effected pursuant to the Board's Standard Operating Procedure
1 (Revision 6, April 1, 1997) by the order of Chief
Administrative Patent Judge Stoner.
) BOARD OF PATENT
) APPEALS
JOHN D. SMITH ) AND
Administrative Patent Judge ) INTERFERENCES
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