In an interesting and somewhat comical opinion today, the Board of Patent Appeals and Interferences (BPAI) rejected an Appellant's argument that a 35 U.S.C. §101 rejection violated the Appellant's rights under the equal protection clause of the 14th Amendment of the U.S. Constitution. As a Florida Patent Attorney with an active patent prosecution docket, this is the first time I've ever seen the 14th Amendment brought up before the BPAI. See the decision in Ex Parte Haines HERE.
The Appellant, Hewlett Packard, was appealing a 35 U.S.C. §101 non-statutory subject matter rejection of a claim that recited propagated signals. HP argued the USPTO has issued patents to others that contain "propagated signal claims" and therefore the current rejection violated HP's rights under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.
The BPAI responded: "Appellant has not cited any authority in support of the novel legal argument. The U.S. Patent and Trademark Office is not part of a state (or local) government, but an agency of the U.S. Department of Commerce. Cf. U.S. Const. amend. XIV, § 1 ("No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."). We are not persuaded that the USPTO has violated Appellant's rights to equal protection of the laws under the Constitution." The footnote reads "absent showing that the agency acted pursuant to some impermissible or arbitrary standard, an argument based on the equal protection component of the Due Process Clause of the Fifth Amendment would also fail. See In re Boulevard Entertainment, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003).
Frankly, I'm surprised the HP attorney would even advance the 14th Amendment argument. I am careful to avoid flimsy or meritless arguments when practicing before the BPAI, as any document with your name on it affects your professional reputation. I aim to have a reputation as an advocate that only presents solid arguments. Readers will take you more seriously and are more willing to consider your line of reasoning when you have an established history of sound argument-making.