Those of you following your docket through the PTO’s PAIR system may note that the Office has begun its ‘identification process’ of unexamined patents with either (1) more than 25 claims issued or (2) more than 5 independent claims. The docket report shows:
- Entry: Flagged for 5/25
- Status: “Request for SIR — Recorded” or “Preexam Flag for 1.75(b) Issues”
According to a telephone conversation with the Office of the Commissioner for Patents, these cases have been pulled from Examiner dockets because they exceed the 5/25 limit and are thus-far unexamined. We will be able to do a retrospective in Mid-November to estimate the number of cases impacted by this pre-rule activity. Of course, this appears to be a de facto implementation of the new rules prior to the stated November 1 effective date.
- For an example, look at the PAIR data for App. No. 20060294241.
- Thanks to James McEwen and Randall Svihla alerting me to this issue.
- This alert will help many practitioners ensure that they have found all their cases that exceed the new limits. Many attorneys keep no specific records of the number of claims filed. For published cases, Derwent keeps track of the number of claims.
- UPDATE 10/17/07 — App. No. 20060294241 referenced above is no longer ‘flagged.’
In other news:
- CAFC Docket: The CAFC heard 13% fewer cases in FY2007 — freeing their docket for additional BPAI appeals. [LINK]
- Preemptive Strike: In another preemptive strike, on October 15th, ESN sued Cisco for infringing Patent No. 7,283,519. Unfortunately, the patent did not issue until the 16th of October. [Link]
“Has anyone filed a motion for the court to hear an amicus brief?”
Do trial courts take amici? I’ve never heard of this, but I’ve lived a sheltered life.
Thanks for the link to Judge Cacheris bio. Penn and GW law, must be a smart guy. Smart enough to realize the rules are illegal, I hope.
Has anyone filed a motion for the court to hear an amicus brief?
“”CNN Dobbs: ‘I spend more time worrying about whether or not the United States can survive the remaining 15 months of his ebbing presidency’… ”
LOL. Loud Obbs isn’t in love anymore.
FYI a memo was just issued by the PTO management saying that we are to continue examining cases that exceed 5/25 until Nov. 1. All cases have been put back on examiner’s dockets, according to the memo.
-An examiner.
Not good – why give the PTO more time whne they should have seen this coming and Tafas was filed long ago?
“CNN Dobbs: ‘I spend more time worrying about whether or not the United States can survive the remaining 15 months of his ebbing presidency’… ”
Can the Patent Office survive?
Wikipedia article on James C. Cacheris.
link to en.wikipedia.org
I just checked the docket. The case was reassigned to a judge named James Cacheris. He overruled the former judge’s order to have the hearing on 10-26 and allowed the PTO until 10-31-07 to respond to the PI hearing. He has also consolidated this case with the Doctor’s case and set the hearing date for both on the same day.
um, no, it won’t fly if the NEW IDS rules are promulgated.
Thanks Mr. Shindler. Do you really think this practice would fly? Otherwise, I agree with everything else you said!
Correction of typo in CAPS: “There can be no “INequitable conduct,” it would seem, if an attorney makes a bona fide effort to draw the Examiner’s attention to a particular reference which the Examiner then chooses to ignore, because the manner of “disclosure” is not perfectly compliant with the PTO’s ridiculous requirements.”
IDS rules that require a particular format for presenting known prior art which may be relevant, are, generally speaking, unenforceable: If an applicant/attorney cites to the PTO references that may be material, whether or not the PTO actually considers such references, would not appear to impact on the inventor’s or his attorney’s duty to disclose under 37 C.F.R. §1.56.
Essentially, if references are cited to the PTO anywhere in the Specification or prosecution history – assuming that such material references are not deliberately “buried,” but presented in a manner in which the Examiner should take notice of them – an Examiner is then “on notice” of the potentially material reference(s). If the Examiner chooses to deliberately ignore a reference clearly cited in a prosecution history, because it might not meet the stringent requirements of the PTO, then the solution may simply be to clearly make the reference known to the Examiner and “call it a day.” There can be no “equitable conduct,” it would seem, if an attorney makes a bona fide effort to draw the Examiner’s attention to a particular reference which the Examiner then chooses to ignore, because the manner of “disclosure” is not perfectly compliant with the PTO’s ridiculous requirements. At some point, the Patent Bar will simply “cite and forget,” thereby avoiding a later finding of inequitable conduct, but refusing to “jump through hoops” by Rules that require applicants and their attorneys to do the work that the PTO was created, and is paid, to do.
An applicant and his attorney have an obligation to cite material references to the PTO, inasmuch as the PTO cannot be expected to uncover any, and all, material references and, if an applicant or his attorney knows of a reference that is material, it is only “fair” and equitable that it be made known to the PTO. Once this obligation is fulfilled, it must not be forgotten that the attorney represents the patent applicant, and not the “public-at-large,” which is, legally speaking, the PTO’s “client.” As attorneys, we should disclose material prior art to the PTO, but we should not be required to “reject” our own clients’ claims.
The PTO may choose to implement particularly stringent rules for the disclosure of prior art, however, it there is a lack of compliance, and the PTO refuses to properly consider prior art “thrown in its face,” then it is deliberately refusing to perform the statutory function that it was created to carry out.
Generally, if you file more than 20 references, expect to prepare an ESD-like document!
I made a flow chart of the proposed rules, and they are bad! and I mean bad bad.
MM: Look over at patent prospector for details.
PL,I think I remember Feb. or March as the projected date.
You mean the new IDS rules, Malcolm? There the ones that are now being reviewed by OMB – the ones that no one outside the PTO and OMB have seen – the ones which are presumably similar to the proposed rules the PTO previously published, but I’m sure slightly less draconian than those originally proposed so that the PTO can say with a straight face “see, we listened to all of the comments submitted to us and changed the rules in light of them” – the IDS rules that will be one more nail for the coffin in which our patent system is being systematically and methodically destroyed
What’s all this about new rules? When did that happen?
Mr. T: “Susan Dudley is now looking at the IDS rules, and again David Boundy submitted a letter tearing into the PTO, which must be CRUSHED.”
Will these rules be effective immediately or will there be a waiting period first? Does anyone know? Should we all start going through our files to make sure every reference is submitted now?
Where are all the guys who planned to sue the PTO. GSK, Tafas and we need your help. PLEASE join the suit!
Susan Dudley is now looking at the IDS rules, and again David Boundy submitted a letter tearing into the PTO, which must be CRUSHED.
One very interesting aspect of the GSK case is the inevitable discovery into the inner workings of the PTO. Given the numerous claims made by GSK, that discovery could be (and should be) wide-ranging. I am certain that it will get very nasty and that some of the information which comes out will be quite embarrassing. Imagine if they track down an examiner that testifies about how he was told to stop examining applications with more than 5/25 claims long before the rules were even published. And the PTO’s goofy rules in 37 CFR 104.21 et seq will not help them a bit. I also assume that the PTO is being diligent in maintaining and preserving ALL documents relevant to the new rules, including internal e-mails and the like.
apparently there was a study done awhile back which determined that if the federal government had not been stealing fees paid to the PTO but instead had given these fees to the PTO and the PTO had spent the money to train and hire new examiners that there would be no backlog. Does anyone have any information on that study? Thanks
apparently there was a study done awhile back which determined that if the federal government had not been stealing fees paid to the PTO but instead had given these fees to the PTO and the PTO had spent the money to train and hire new examiners that there would be no backlog. Does anyone have any information on that study? Thanks
Good idea dood, after they are CRUSHED, dust the managers off and send them back to the shoes for a 10 year sentence! It’s not too fun in the shoes, ha ha.
My two cases also have lost their “Flagged” status and now show merely “Docketed”. My voicemails to the Examiners assigned those cases went unanswered.
AMEN patentdood
Someone posted a while back a question regarding what the real problem was – the PTO says the problem is the backlog – and asked how can we solve it. Here’s an easy answer. Take all of the “lost examining” hours the PTO spent promulgating the rules, responding to comments, traveling on road shows, defending the rules, publishing OG notices and the like, and now defending litigation, and spend those hours doing their job – Examining applications. The backlog would be gone!
I never thought I’d be rooting more for someone other than the Sox in October, but I have to say, GO GSK!
Do you trust the DOJ? It appears the body-snatchers have completed their long term plans at DOJ. It is also apparent they have in all the agencies leading up to the publication of these rules.
Guess what, my cases are no longer flagged as being subject to the 1.75(b) showing. Ya know what. It is time to call the Department of Justice and start having every single employee investigated to see if there is a conspiracy within the agency to violate the laws and regulations of the United States. Are applicants actually being denied patent term by deliberates acts of the USPTO in delaying examination of the application. Perhaps we should talk about retroactively giving each patent the longer of 17 from issue or 20 from priority. He he he he.
Guess what, my cases are no longer flagged as being subject to the 1.75(b) showing. Ya know what. It is time to call the Department of Justice and start having every single employee investigated to see if there is a conspiracy within the agency to violate the laws and regulations of the United States. Are applicants actually being denied patent term by deliberates acts of the USPTO in delaying examination of the application. Perhaps we should talk about retroactively giving each patent the longer of 17 from issue or 20 from priority. He he he he.
Charlie, I am too old to serve, but I will pray for you: Our Lady of Divine Retribution, don’t fail us now.
This is a Charlie Foxtrot. I want some heads and I want them now. I believe we should start with Dudas being removed from Office. Laides and gentlemen it is time for politics. They messed with the system and now it is time the system messes back. What is happening with that Peterlin case? Her head should roll too for backing this garbage. These GD rules are changing so fast I can’t keep up with them. That is and of itself violates due process. Don’t the people in the patent office know anything about the Constitution. WE HAVE A RIGHT TO A REPUBLICAN FORM OF GOVERNMENT. You cannot have a republican form of government without the citizens having an opportunity to know what is exepected of them. In short anyone who supports the implementation of these rules is simply a fascist.
Malcolm, while I’m as pleased as you are with the issuance of an OA in the re-exam that says the one-click patent is crap, it (unfortunately) ain’t over till it’s over. Please let us know when this thing is really dead for good.
Anon,
The whole point of my post was that we should not have to wait until the CAFC to be reasonably sure of claim interpretation. The CAFC should only be able to overturn a lower court claim interpretation for clear error or whatever the standard is for matters of fact.
Joe
In other news
link to igdmlgd.blogspot.com
The irony, of course, is that this patent smelled worse to the public than anything before or after.
And now it’s official: it was a bunch of crap.
“Besides the PTO itself, is there anyone that has commented favorably on the new rules?”
Yes, the firms that represent Intel have commented favorably. What a surprise. This should be a tipoff to the USPTO that the rules severely hurt the small guys with less money. But I’m convinced they don’t care.
Does anyone know what Judge Cacheris’ history is with regard to preliminary injunctions? And can the CAFC really hear an emergency appeal on the same day??? Although I am sure they are reviewing the case now.
Dudas should in the very least suspend enforcement of the rules until the CAFC has heard the “emergency appeal” (if needed).
It will have to be a ruling from the bench on the 31st in order for the loser to file an emergency appeal at the CAFC the same day.
The 31st will indeed be “trick or treat” for all of us.
Both cases were also consolidated with Judge Cacheris.
“re-scheduled the hearing on GSK’s motion for preliminary injunction to the morning of October 31, 2007. The loser on the preliminary injunction motion will have to make a dash to the CAFC that afternoon.”
Well even though the hearing is on Oct 31, a decision will not be rendered that day, will it?
just an ordinary inventor >> this might be of interest
by John Orange
JUDGE PAUL MICHEL’S TOP TEN DRAFTING TIPS
At the Newport Beach Seminar three eminent Judges from different US Courts gave their views on how Patent practitioners could improve their presentation of claims before their Court. Judge Paul Michel of the CAFC provided a list of ten points that he considered should be followed in preparing patent applications. These tips are produced below, as recorded on the fly and therefore with no guarantee of accuracy:-
1 – Make sure there is support for the claims; track the language used in the claim back to the specific description to ensure the same terminology is used.
2 – Check whether the term used has an established meaning in the art and whether that meaning is appropriate in the particular circumstances in which it is to be used.
3 – Avoid amendment during prosecution!
4 – Prosecute the claims for literal, not equivalent, scope.
5 – Know the Federal Court case law on construction. Look at the decision as a whole, not just a stray phrase, and read all the cases.
6 – Where there is more than one possible meaning for a term, and in the absence of other factors, the customary meaning in the art is more relevant than the ordinary meaning.
7 – Dictionaries relevant to the art are a prime source for ascertaining the appropriate meaning of the term.
8 – When listing and discussing prior art references, check that the art uses a term in the same manner as in the specification and describe the art using terminology consistent with that used to describe the embodiments..
9 – Describe multiple embodiments wherever possible.
10 – Avoid creating a prosecution history except where you wish to establish a broader interpretation than might be the customary interpretation.
The K & E firm profile for Desmarais (GSK’s attorney) includes “P.C.” after his name – – what the hell is P.C.???
An oldie but a goodie:
One dark evening Jon Dudas was on his hands and knees under a street light looking through the grass.
A pedestrian asked what he was looking for.
“The keys to my car.” said Jon.
Having some time and feeling helpful, the pedestrian joined Mr. Dudas in his search.
After a while, with no success, the pedestrian asked: “Where were you when you lost your keys?”
“Over there by my car.” the Mr. Dudas gestured.
The pedestrian was puzzled. “Why are you looking for them here?”
Jon Dudas explained: “The light’s better!”
CRUSH THE PTO
I like the sound of that. I used to like them, despite the heartaches of prosecution. However, things change. This is now my plea to the gods. But please, spare the examiners.
“Ideally, I would rather see every district court assigned a “patent” judge or judges that are technically trained. I would prefer my claims interpreted by such judges.”
I would prefer that, too.
I see from the Docket Sheet in the GSK v. Dudas action that Judge James C. Cacheris, the judge for the Tafas v. Dudas action, has entered an Order consolidating the two cases, which is not surprising, and has now re-scheduled the hearing on GSK’s motion for preliminary injunction to the morning of October 31, 2007. The loser on the preliminary injunction motion will have to make a dash to the CAFC that afternoon.
Today I had about twenty 25+ cases put back on my docket. Where are the other 10 that were taken off? …I don’t know. When I looked on PALM, it said “25+ withdrawn” for the cases that were put back. If there is a preliminary injunction forcing the PTO to put the 25+ cases back on the docket, I am not aware of it. The 25+ continuations on my “special new” docket and 25+ elected restrictions on my “regular amended” docket were never touched, even though they would have been subject to the new rules. Our SPE has sent no e-mail to clarify the situation.
“If you file two cases with 20 claims each that are indentical, the USPTO is required, by statute, to examine each case. I mean, besides the fact that 120 seems to confer a right of priority with the word “shall”, 131 says that the director “shall” cause an examination to be made.”
Not under the new rules
Anyone with information/comments/case support, etc., which may be helpful to GlaxoSmithKline should direct their comments to GSK’s lead counsel, John Desmarais at Kirkland & Ellis. Mr. Desmarais’s e-mail is: jdesmarais@kirkland.com, as listed on Kirkland & Ellis’s website.
I have e-mailed a few comments, case citations, etc., to Mr. Desmarais since Friday, and Mr. Desmarais seems pleased to receive any thoughtful suggestions that might be of assistance.
I find that Kirkland & Ellis is doing an excellent job on behalf of GSK and will ultimately CRUSH the PTO! The very fact that the DOJ, which represents the PTO, finds itself complaining about the burden of “electronic paper” sent its way by GSK speaks volumes of how GSK’s case stacks up. Further, the PTO’s decision to “pull” the 37 C.F.R. §1.75(b) “flags” seems to suggest that the PTO might now be on the defensive. It’s arrogance is finally catching up with it!
Gentlemen, now really…. Examiners have simply stopped working on cases that had more than 25 claims some time ago. In fact, our SPEs told us to do so (as if we didn’t already know). As far as the Zero Inventory Date cases, it’s no bright line rule.
Lets see – I’ve got a docket of 120 cases (40 of which are new). I can easily get by without working on 10 new cases that have over 25 claims. Oh well.
I do have to say, however, that the PTO’s actions have disturbed me here. I have some friends that were actually working on cases with over 25 claims (some of them EVEN COMPLETED, but not counted); but – these cases were pulled right out form our dockets!
I think that a VERY pertinent point was made above. If you file two cases with 20 claims each that are indentical, the USPTO is required, by statute, to examine each case. I mean, besides the fact that 120 seems to confer a right of priority with the word “shall”, 131 says that the director “shall” cause an examination to be made.
I agree with Mr. Lionel in so much as claim interpretation should be a question of fact decided by a jury. However, the courts are mindful of the Doctrine of Jury Nullification which was incorporated to American jurisprudence vis-a-vis the 7th Amendment. Were claims interpreted by a jury, they could use the Doctrine of Jury Nullification to award affable patent holder and punish a recalcitrant patent holder. Could you imagine if the Doctrine of Jury Nullification was properly used in the Copyright infringement trial brought by RIAA?
“Claim interpretation is a matter of fact. And I would rather have a jury that may contain an engineer or two interpreting claim language than a judge with no technical background.”
To start with, no fewer than 5 of the current Federal Circuit judges have technical backgrounds, including 2 PhDs. Besides, if you’re so worried about the court getting the claim construction wrong, then why don’t you define the claim language in the specification as you’re allowed to do so???
Malcolm,
Based upon our past exchanges, I have no idea whether you are being sarcastic and if so, about what.
However, if your first sentence was genuine, then thanks, but I do not believe I said anything particularly profound.
Ideally, I would rather see every district court assigned a “patent” judge or judges that are technically trained. I would prefer my claims interpreted by such judges. However, for better or for worse, I do believe claim interpretation is primarily factual and if a party wants a jury, they should be able to have it.
“Claim interpretation is a matter of fact. And I would rather have a jury that may contain an engineer or two interpreting claim language than a judge with no technical background.”
That’s priceless, Lionel. You’ve outdone yourself.
For the most part, judges do a decent job on claim construction. That said, there is still a shocking number of them who “don’t get it.” Of course, that’s not entirely their fault. Behind every crappy claim construction is an crappier brief written by attorneys who should probably be sanctioned for their misrepresentations of the law and facts.
Malcolm,
I am surprised you would defend Markman. Festo was overrated, but Markman essentially means claim interpretation is incomplete until the CAFC determination.
Claim interpretation is a matter of fact. And I would rather have a jury that may contain an engineer or two interpreting claim language than a judge with no technical background.
NIPRA sued Rogan twice to make him follow AIPA (both suits were settled, one after Rogan was force to withdraw a presumably false “certification” he made to Congress). The filings (and settlement stipulations) from the suits are still posted at:
link to nipra.org
“Besides the PTO itself, is there anyone that has commented favorably on the new rules?”
Intel commented favorably on the rules as they were originally proposed, along with others in the software electronics industry.
The DOJ also commented favorably.
“Has anyone ever successfully sued the PTO to stop a set of rules from going into effect?”
Interesting question. Has anyone every sued the PTO to stop a set of rules period?
I have 3 cases that now have the flag for 5/25 withdrawn — I’ve reviewed the claims in each, and would be unsurprised to get a restriction in all of those. It may be that they’re filtering them for restrictable claims.
Of the ones that the flag was NOT withdrawn, I notice that one says a FOAM was just mailed yesterday, the same day it was flagged.
anon examiner: “i.e. if an examiner’s docket is loaded with new cases (and in light of the production quota system), cases with over about 30 claims tend to sink to the bottom of an examiner’s docket and stay there until their SPE is beating down the door for the Office Action (this doesn’t happen much),”
Has the PTO eliminated the “date case in the Art Unit” standard for moving cases that existed when I was there (admittedly a long time ago)?
“i.e. if an examiner’s docket is loaded with new cases (and in light of the production quota system), cases with over about 30 claims tend to sink to the bottom of an examiner’s docket and stay there until their SPE is beating down the door for the Office Action”
No surprises there! We can all relate.
I can understand the uproar by all of the outside patent attorneys over the new rules, but as an examiner I can tell you that we have been practicing our own version of the 5/25 rule for awhile – – i.e. if an examiner’s docket is loaded with new cases (and in light of the production quota system), cases with over about 30 claims tend to sink to the bottom of an examiner’s docket and stay there until their SPE is beating down the door for the Office Action (this doesn’t happen much), or negative workflow starts to kick in, or there just aren’t any other cases on the docket to work on. I’m sure the statistics on this (pendency versus the number of claims in a given application) would confirm my point.
Has anyone ever successfully sued the PTO to stop a set of rules from going into effect?
I don’t think so.
And, so, I don’t forsee that GSK will succeed where others failed.
One last thing, Gene Quinn and John White over at PLI have put out a “call to arms” for those willing to join GSK in the good fight. Since many companies and firms are likely hesitant to put their name out front, Gene is suggesting that anyone with one or more arguments suitable for an amicus brief send the material to him ASAP. Even if you are unable to lend your name, you can help in the cause. Link to PLI’s blog site site: link to pli.edu
While I’ve been around too long to ever take anything for granted in litigation, particularly patent litigation, I am optimistic with respect to GSK’s lawsuit (including the PI motion). Hopefully, my gut feeling is correct. If so, I also wonder if the GSK case will eventually make it to this page: link to vaed.uscourts.gov Now that would be a nice irony given the other cases currently listed
“Which means the difference between 26OCT and 29OCT is either six days, three days, or one day, depending on how you count.”
Well, thank you for the clarification… I think. 🙂
Dear Malcolm,
“On the other hand, the old rules were being abused to the detriment of every citizen except entities so wealthy and legally well-armed that they are immune from harm in the practical sense.”
Yes, to some limited extent I agree (surprised?), and the abuses under the old rules should have been and were being curtailed (as did, e.g., Fish & Neave in Nevada when they shutdown Lemelson).
That was the remedy all right, not the hyperBS that has been and is being foisted on us faithful practitioners of the legal arts and (in my case) the ordinary inventing arts.
“What if they do this sort of counting with our claims??”
If I understand it properly, Local Rule 7 and FRCP 6 each measures in calendar days; USPTO was whining in business days.
Which means the difference between 26OCT and 29OCT is either six days, three days, or one day, depending on how you count.
Besides the PTO itself, is there anyone that has commented favorably on the new rules?
One more thing, Mr. Ordinary: I think the new rules stink and I hope that GSK’s suit manages to delay their implementation for a long time, if not indefinitely.
On the other hand, the old rules were being abused to the detriment of every citizen except entities so wealthy and legally well-armed that they are immune from harm in the practical sense.
Of course, the Reaganites and their neocon offspring would argue that what’s good for those entities is good for every man, woman, and child in the US.
Not all of us are so braindead, thankfully.
“PS: I guess we know where your bread is buttered.”
Yeah, it’s buttered on the side of the average person that doesn’t go around beating people over the head with crap patents. You know: the same side that 99% of Americans butter their bread.
You really are an “ordinary inventor”, in the most literal sense of that term.
If I may . . . let me succinctly translate GSK’s response to the USPTO’s whining . . . “tough Sh!t. You wrote this cr@p now deal with it.”
USPTO whining:
“5. By noticing the hearing on their Motion for Friday, October 26, Plaintiffs left the USPTO with merely eight (8) days to file their opposition to the motion, even though (1) the Final Rules implicate extremely complex issues of patent prosecution procedure; (2) the Motion contains hundreds’ of pages of exhibits, including an extra legal brief masquerading as an exhibit; and (3) the Motion requires the USPTO to investigate highly technical patent 2 applications in order to assess the validity of Plaintiffs’ allegations of “irreparable harm,” standing, and ripeness.
6. Pursuant to Local Civil Rule 7(F)(1), a party opposing a motion is entitled to
eleven (11) days to respond to that motion. Federal Rule of Civil Procedure 6(e) augments that time by an additional three (3) days. Thus, under the applicable rules, the USPTO is entitled to fourteen (14) days — or until October 29, 2007 — to respond to Plaintiffs’ Motion.”
Can USPTO lawyers count?
“Friday, October 26” : “merely eight (8) days”
“[T]he USPTO is entitled to fourteen (14) days — or until October 29, 2007”
What if they do this sort of counting with our claims??
Is Margaret Peterlin handling the case for the PTO?
Some tidbits from briefing in the GSK lawsuit.
From the PTO’s unsuccessful request (i.e., whining) to delay the hearing on the PI motion:
“Plaintiffs left the USPTO with merely eight (8) days to file their opposition to the motion, even though (1) the Final Rules implicate extremely complex issues of patent prosecution procedure; (2) the Motion contains hundreds’ of pages of exhibits, including an extra legal brief masquerading as an
exhibit;2 and (3) the Motion requires the USPTO to investigate highly technical patent applications in order to assess the validity of Plaintiffs’ allegations of “irreparable harm,” standing, and ripeness.”
GSK’s response:
“the Defendants already understand the “extremely complex issues of patent prosecution
procedure” implicated by the Final Rules—they wrote them.”
and
“The Defendants apparently did not mind that these new rules, which exceed their rulemaking authority, will retroactively affect thousands of pending patent applications, or that they force applicants such as GSK to read, comprehend, and attempt to reorganize their business activities to comply with this sea-change in a mere two months. Thus, it strains credulity that the Defendants now argue that they do not have a sufficient amount of time to respond to an emergency challenge to these rules. In short, the Defendants’ unreasonable effective date caused this situation. If Defendants require more time to respond, they should agree to postpone the effective date of the Final Rules.”
and
“The Defendants give no cogent reason why they need more time, other than making the conclusory assertion that GSK’s motion is “massive” (Docket # 17, Emergency Motion at 1). Most of that “mass” is actually the text of the Final Rules which the Defendants wrote and an exemplar patent (Docket # 14, Exhibit A; Docket # 15, Exhibit B-1).”
How pathetic.
Dear metoo,
Thank you for your kind comment and edification.
Well then, we have the rare opportunity to make history. I don’t mean to only joke – – Something Must Be Done!, before we all go to hell in a hen basket or worse. I’m only an ordinary inventor, I cannot do it alone. It will take a team effort. R U with me on this 4 COL …
I have a case whose status states “Non Final Action Counted, Not Yet Mailed” where the non final action was written 4 days prior to the mysterious 5/25 flag appeared (10/12 vs/ 10/16). I will surely be monitoring this one.
Oh boy this is great!
ROFL = rolling on the floor laughing….and my apologies for using it, as I did not intend it as a personal criticism.
As for impeachment, it has happened only once in US history – Samuel Chase was impeached by the House, but acquitted by the Senate (and therefore remained on the bench).
Methinks that the USPTO proved Tafas and GSK’s cases; a temporary taking is still a taking. Irreparable harm has already occurred. If you follow their actions, it is clear the USPTO is scrambling; revised guidance,threats by OED, flagged and unflagged status within a day; OMB criticism about planning. All we need is a sex scandel and the who situation will be worthy of a movie script.
Dear metoo,
“They sure can be impeached – and the frequency with which Supreme Court justices have been impeached is indicative of the likelihood of it happening any time soon. In other words, ROFL – good luck!”
Maybe if we lope off just one head (via impeachment), the rest will catch the drift? One step at a time is better than standing still for this affront.
PS: I’m a little new to this, what is ROFL?
PREDICITION. The USPTO will be CRUSHED by GSK. I don’t even think it will be close. I just hope the courts ruling does not totally eviscerate the executive agencies’ powers. I mean Judge Hilton is a Reagan appointee. Remember Ronnie’s quotes “I want to abolish the department of energy and education.” Not a real friendly guy to executive agencies. Well Judge Hilton, I hope that you remeber the defender of freedom and the man who defeated communism without firing too many shots when you make your ruling.
I would be interested to know the first office prediction for some of the applications that have had the flags removed. Mine have not changed.
Hello Malcolm,
Thanks for your comment. I always enjoy your jokes.
PS: I guess we know where your bread is buttered.