One of the amicus briefs urged that courts should give deference to the examiner's decision only as to prior art that had been discussed in writing by the paten

One of the amicus briefs urged that courts should give deference to the examiner's decision only as to prior art that had been discussed in writing by the patent examiner, thus providing a written record of reasoned decision-making that could be reviewed by a court. That brief relied on the Supreme Court's holding in the Zurko case [1] that the standard of review in the Administrative Procedure Act applies in appeals from decisions by the USPTO just as much as in other administrative appeals. Footnote: The Zurko patent [2] was one of the early software patents, for a method for executing trusted commands in an untrusted environment. The lead inventor was Mary Ellen Zurko, aka "mez," who then worked for Digital Equipment and is now with IBM. (Disclosure: I drafted that patent.) [1] Dickinson v. Zurko, http://www.law.cornell.edu/supct/html/98-377.ZO.html http://www.law.cornell.edu/supct/html/98-377.ZO.html; see also In re Zurko, http://law.justia.com/cases/federal/appellate-courts/F3/111/887/630610/ http://law.justia.com/cases/federal/appellate-courts/F3/111/... [2] http://www.freepatentsonline.com/6507909.html http://www.freepatentsonline.com/6507909.html