NOTE: This order is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-1066 GILBERT P. HYATT, Plaintiff-Appellant,

v. David Kappos, DIRECTOR, PATENT AND TRADEMARK OFFICE, Defendant-Appellee.

Appeal from the United States District C ourt for the District of Columbia in case no. 03-CV-901, Judge Henry H. Kennedy, Jr.

Before MICHEL, Chief Judge , NEWMAN, MAYER, LOURIE, RADER, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges

. PER CURIAM. O R D E R Plaintiff-Appellant Gilbert P. Hyatt f iled a combined petiti on for panel rehearing and rehearing en banc. Action on the petiti on for rehearing en banc was deferred until the panel that heard the appeal had an opportunity to consider the request for panel rehearing. The panel requested a respons e to Hyatt’s petition from DefendantAppellee, the Director of t he Patent and Trademark Office. A response was filed. On unopposed motion, the New York Intellectual Pr operty Law Association filed a brief as amicus curiae in support of Plaintiff-Appellant’s petition. The petition for reheari ng was considered by the panel that heard the appeal, and thereafter the petition for rehearing en banc, the respons e to the petition, and the amicus brief were referred to the circui t judges who are authoriz ed to request a poll onwhether to rehear t he appeal en banc. A poll was reques ted and taken, and the court has decided that the appeal wa rrants en banc consideration. Upon consideration thereof, IT IS ORDERED THAT: (1) The petition of Plainti ff-Appellant Gilbert P. Hyatt for panel rehearing is denied. (2) The petition of Plainti ff-Appellant Gilbert P. Hya tt for rehearing en banc is granted. (3) The court’s August 11, 2009 opinion is vacated, and the appeal is reinstated. (4) The parties are requested to file new briefs addressing at least the following issues: (a) Are there any limitati ons on the admissibility of evidence in section 145 proceedings? In particular— (i) Does the Administrative Proc edure Act require review on the agency record in proceedings pursuant to section 145? (ii) Does section 145 provide for a de novo proceeding in the district court? (iii) If section 145 does not provide for a de novo proceeding in the district court, what limitations exist on the presentation of new evidence before the district court? (b) Did the district court properly exclude the Hyatt declaration?

2007-1066 - 2 -2007-1066 - 3 - (5) This appeal will be hear d en banc on the basis of the originally filed briefs, additional briefing ordered herein, and oral argument. An original and thirty copies of all originally-filed brie fs shall be filed within forty-two (42) days from the date of filing of this order . An original and thirty copies of new en banc briefs sha ll be filed, and two copies of each en banc brief shall be served on opposing counsel. T he Plaintiff-Appellan t shall file his new en banc brief within forty-two (42) days from the date of filing of this order. The response brief of the Defendant-Appellee is due within twentyeight (28) days from the dat e of service of the Plaintiff-Appellant’s brief. The Plaintiff-Appellant’s reply brief, if any, is due within fourteen (14) days from the date of service of the response. Briefs shall adhere to the typevolume limitations set fo rth in Federal Rule of Appellate Procedure 32 and Federal Circuit Rule 32. (6) Briefs of amici curiae will be enterta ined, and any such amicus briefs may be filed without leave of court but otherwise must comply with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29. (7) Oral argument will be held at a time and date to be announced later.

FOR THE COURT February 17, 2010 /s/ Jan Horbaly________ Date Jan Horbaly Clerk cc: Michael L. Martinez, Esq. Raymond T. Chen, Esq. Mark J. Abate, Esq.