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Applicants×39 s position in asserting an argumenpatentnt ability to the PTO or opposing an argument of .... Brassier, 267 F.3d at 1382-83. The court went on, ...
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. [i]f the petition is frivolous, a court may decline to consider the petition .... A court in its discretion may also decline to consider a request to dismiss a frivolous petition when the petition states a reasonable factual foundation. ... The petition in this case had merit, it was a fair-minded request for reconsideration of the decision of the PTO.” The court reasoned that, like Petitioners' “substantial evidence of infringement and its substantial economic effect,” the petition “contained not one but two elements that did not exist in the previous case.” I'd, at 1382-83. These two elements were that: “[W]while the 'copyright claims' were not dismissed based upon these two elements of the complaint, they were dismissed because, given the allegations in the complaint, the court found that the complaint did not rise to the level of a legal or factual motion ... The court determined that the allegations in the complaint did not rise to the level of an enforceable claim ....” I'd, at 1383. The court then held: “[B]because the allegations in this case are so similar to those raised in the complaint prior to application of the [FDA's] safe harbor, this Court concludes that, although the PTO did not issue a notice denying safe harbor protection to a substantial category of claims, it did ... in fact dismiss applications for renewal pending review ... that are otherwise not subject to a safe harbor because the allegations in the complaints are substantially similar. ... Therefore, notwithstanding its denial, the PTO was required to grant the applications of two companies that received the safe harbor.” I'd, at 1383, 1384. The court further held that “[d]despite the fact that the complaint in this case was substantially similar, we do not address whether this Court may dismiss the action based upon a procedural breach.” I'd, at 1384-85. Following oral argument on September 10, 2010, the court denied the petition. Petitioners appealed in the United States Court of Appeals for the Federal Circuit. The Federal Circuit held that, contrary to the D.C.

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