Pursley, Inc., Appellant, v. Secretary, Department of Agriculture, Appellee, 949 F.2d 402 (Fed. Cir. 1991)

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US Court of Appeals for the Federal Circuit - 949 F.2d 402 (Fed. Cir. 1991) Sept. 11, 1991

Before ARCHER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PLAGER, Circuit Judge.

ORDER

ARCHER, Circuit Judge.


Pursuant to the court's directive, the parties have addressed the issue of whether Pursley, Inc.'s appeal is premature.

Pursuant to the Plant Variety Protection Act, an applicant seeks examination of its application for a certificate of plant variety protection by the Plant Variety Protection Office. If the Office denies the application, then the applicant may appeal to the Secretary of Agriculture. 7 U.S.C. § 2443. The Secretary's decision may, in turn, be appealed to this court. 7 U.S.C. § 2461.

Here, Pursley filed a protest with the Office seeking reexamination of another party's certificate. The Office denied Pursley's protest and Pursley filed a notice of appeal directly with this court. Pursley argues that it is not required to first appeal the Office's decision to the Secretary, as it must in an original examination proceeding, because the statute governing reexaminations is silent on this point. In response, the Secretary argues that an appeal to the Secretary is a statutory prerequisite to judicial review of a reexamination decision.

We agree with the Secretary. Section 2501 of 7 U.S.C. provides:

Reexamination after issue:

(b) Reexamination of plant variety protection under this section and appeals shall be pursuant to the same procedures and with the same rights as for original examinations.

Accordingly,

IT IS ORDERED THAT:

Pursley's appeal is dismissed.