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TTABlog Special Report: Two TTAB Fraud Decisions Now Await CAFC Review

TTAB practitioners should keep their eyes on two TTAB fraud decisions now on appeal at the U.S. Court of Appeals for the Federal Circuit, because one or both may provide some welcome CAFC guidance on this vexing issue. In each case, the American Intellectual Property Law Association (AIPLA) has filed an amicus brief arguing that the TTAB's fraud standards are inconsistent with the elements of common law fraud set out by the CAFC in prior rulings. The AIPLA asserts that the Board has wrongly replaced the "critical element of deceptive intent" with a loose "knew or should have known" standard that fails "to capture only mental states characterized by recklessness or deceptive intent," resulting in essentially a "strict liability regime." And as to the issue of materiality, the Board fails to consider whether the "non-used" goods or services are so closely related to the other goods or services in the challenged application or registration that the erroneous inclusion of the "non-used" items "had any significant impact on the public...continue to full post

Full post as published by The TTABlog on February 25, 2009 (boomark / email).