This paper begins with the Solicitor [of the U.S. Patent and Trademark Office]'s explanation of the term "unpublished." It then reviews various kinds of published PTO decisions where the precedential effect of unpublished decisions has been addressed. There, we see that the PTO has generally not ignored unpublished precedent--at least, deliberately--and that the Solicitor agrees that this may not be done. Next, this paper examines the almost universal practice of federal appeals courts disallowing use of their unpublished decisions as precedent--and some of the reasons for widespread criticism of that practice. It also discusses some of the reasons that judges, regardless of their own practice, do not permit agencies to ignore prior decisions. Last, the paper turns to the Freedom of Information Act (FOIA). There, we see that while the FOIA addresses the use of precedent by agencies against parties, it does not explicitly deal with the use of precedent by parties against agencies or other parties. We also find that the PTO often discloses more information than the FOIA requires. Nevertheless, it seems that, given current technology, still more could be cost-effectively made available. Indeed, from examining this situation, I have concluded that Congress should further amend the FOIA to permit affected persons to obtain critical information more easily from all agencies.

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IDEA: The Journal of Law and Technology

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This article was also made available as Paper 31 in the Pierce Law Faculty Scholarship Series by NELLCO (nellco.org).