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« Amici File Briefs Supporting Certiorari in K-Dur Case | Main | Amici File Briefs Supporting Certiorari in K-Dur Case -- Part II »

October 09, 2012

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At one point the article states: "However, in many instances, the applicant is driven to appeal or filing of an RCE due to significant problems with the examination."

My question: Are the presidential orders (which include determining whether or not the agency action CAUSES a problem) in force for the Patent Office and its determinations on how to affect applicant behavior through fee setting?

Got an OA in which the examiner copied, verbatim, a rejection made by a different examiner in a different case assigned to the same company. The claims in the two apps are different. We said we couldn't respond b/c the examiner in our case didn't explain how the art related to each and every claim. He issued a final rejection. We said, you can't make it final, you didn't make a prima facie case of obviousness the first time. We've now received an advisory action saying, "Boo, go away, you bother me." We can appeal or file an RCE; but under the proposed new fees, we'll get screwed either way b/c this examiner is lazy, incompetent or both.

Dear Stupendous:

David Boundy of Cantor Fitzgerald alerted us to an alternative way of handling this type os problem a few years ago. His suggestions can be found at:

http://www.patentdocs.typepad.com/patent_docs/2007/08/procuring-paten.html

http://www.patentdocs.org/2007/08/more-on-mpep-71.html

Good luck, and thanks for the comment.

Any study of the use of these suggestions since they were first put forth? Frequency? Effectiveness?

The USPTO cannot possibly perform an effective prior art search of the non-patent literature they are aware of, and are inherently limited in the databases which they do search in the first place. Sampat tells that patent examiners rely on applicant disclosures of prior art, but that we cannot guarantee that applicants will perform as thorough a prior art search as is necessary. Thus, the USPTO issues many (if not most) patents without performing a sufficiently thorough prior art search. The result is a system full of patents which should be invalid under section 102 of the U.S.C. and is therefore deficient in its role of protecting and promoting intellectual property rights. http://bitly.com/RMXFDk

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