We previously blogged ([here]) on Judge Proctor’s (ND Ala.) order directing the United States Patent and Trademark Office (the “Board”) to comply with the Court’s prior order, approving a settlement agreement between the University of Alabama and trademark applicant Mafia Enterprises LLC, which included vacating a prior Board decision that had been appealed to the District Court. Although the Board appealed Judge Proctor’s order to the 11th Circuit, on May 2, 2016, it dropped that appeal in an unopposed motion. Despite dropping the appeal, the Board remained unbowed: it indicated its view of the order — directing it to vacate a precedential opinion based on a private settlement agreement among litigants — was improper. The Board reiterated its view it is improper for private parties to obtain vacatur of a Board decision unless a reviewing court has reviewed the Board decision on the merits and found it to be in error such that vacatur is required. Since negotiated vacaturs are common, we perhaps have not heard the last word on this type of dispute.
