Patently-O TidBits

• Dr. Tafas has submitted an amended complaint and withdrawn his motion for preliminary injuntion to stop implementation of the continuation rules.
• A sweeping patent reform bill passed in the House of Representatives. Action now moves to the Senate. IPO’s leader Herb Wamsley may force me to eat my hat.
• BNA is hosting a conference called Patent Obviousness on October 1 at the Arlington Ritz. Given the confusingly similar name, BNA is offering $150 discount to Patently-O readers who sign-up online: go to legaledge.bna.com for online registration and enter discount code "blog" at check out. (Price is still $1000 after discount)

Comments

[inventor]

Yes, this bill is the kind of thing that gets passed by people who have no idea whatsoever regarding the subject matter of the bill. They may as well pass a bill regulating the energy output of mitochondria.

[Herb Glum]

Well put inventor.

[MC]

Does anyone understand what Issa's PTO authority amendment means? Does it mean that the PTO will need to justify its new continuation rules in some way?

[SF]

"Does it mean that the PTO will need to justify its new continuation rules in some way?"

The House report on the bill said the USPTO already had the implicit authority in their view, but they added the express authority to avoid any challenge to that previously implicit authority.

[Anon E. Moose]

"They may as well pass a bill regulating the energy output of mitochondria."

Didn't you mean midichlorians?

[anon]

Dr. Tafas's new complaint is far more powerful and convincing than his first complaint. He included some new causes of action for the ESD rules. There's no way the ESD requirement will go into effect.

[anon]

Dr. Tafas's new complaint is far more powerful and convincing than his first complaint. He included some new causes of action for the ESD rules. There's no way the ESD requirement will go into effect.

[me]

Any way to post Dr. Tafas complaint here Dennis?

[patent leather]

Why did Dr. Tafas withdraw his motion for a preliminary injunction? Does this mean this case will now take years to resolve? I was hoping that the PI might be granted and the rules won't even have to go into effect.

[Jeff Spangler]

The First Amended Tafas Complaint is posted on this page:
www.patentdocs.us/patent_docs/articles_cases_miscellaneous/index.html

[A patent lawyer who knows a little administrative law]

I disagree with "anon:" Tafas' amended complaint is almost as bad a botch job as the original.

They got the address for service wrong.

The Regulatory Flexibility Act only applies to rules when "required by [5 U.S.C. § 553] or any other law to publish a general notice of proposed rulemaking." Voluntary notice and comment has apparently never been adjudicated, but probably does not suffice. Tafas' amended complaint fails to even plead this element of a RegFlex claim, let alone facts that would support it.

In some jurisdictions, mere certification that a rule would not, if promulgated, have a significant economic impact on a substantial number of small entities is sufficient to comply with RegFlex. The PTO did that.

If this is the best lawyering that can be brought to bear, we all better get used to these rules.