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February 13, 2013

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Comments

Don,

Thanks for making a heroic effort to digest and summarize these "God Forsaken" final rules on implementing the "first-to-file" regime. These rules continue to confirm my view that the AIA is the Abominable Inane Act. Also, I don't direct primary "blame" for these rules to the USPTO, but to our Congress who bought into (and were bought by certain lobbyists) to passing this bilge.

Donald-

Like EG, I really appreciate your efforts to try to make some sense out of the Rules as published. I think the AIA was a huge mistake, but there is not much to be done about it now, outside of getting it declared to be unconstitutional, and therefore put a hold on the implementation until they fix it such that it is constitutionally allowed. A first case mentioned on Patently-O today is probably only the first of several, but time is short for that gambit to work before March 16th. http://www.patentlyo.com/patent/2013/02/madstad-engineering-inc-v-us-patent-trademark-office-812-cv-01589-md-fla-2013-in-2012-madstad-filed-a-declarato.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+PatentlyO+%28Dennis+Crouch%27s+Patently-O%29

How close to the wire did the Tafas case come?

Does it matter for any constitutional challenge that the sheer size of the undertaking can be likened to the Korean Cheobel theory (too big to let fail)? Does the fact that a "lesser fail" as in an amendment that would have allowed a partitioning of those parts of the law from the rest was both advanced and rejected?

Whether the monster size can be ignored, even in face of a constitutional challenge, well, I am...

In the Tafas case it was right down to the wire, but it seems as if the overwhelming opinions as in the numerous amicii briefs seemed to turn the tide, if nothing else. If the rules are allowed to be implemented without being stopped, it seems as if it might take literally an act of Congress to get it changed in any significant manner. Even a temporary restraining order might work, even if they aren't able to get an injunction, either temporary or permanent. The TRO would give some time to pursue it further, or a permanent injunction would essentially say "naughty Congress, try to get it right next time."

They would then have to go back and *fix* it if possible, but I really don't think it is possible to fix it to anyone's satisfaction but Senator Leahy's without drastic changes to the language. Congress obviously doesn't understand what damage they might be doing, so I tend to think a reality check like a Constitutional challenge might actually wake up a few Senators and Representatives as to what they almost did by being negligent.

Skeptical and Stan:

The district court issued a PI to halt the claims and continuation rules on October 31, 2007, the day before the claims and continuation rules were set to go into effect (http://www.patentdocs.typepad.com/patent_docs/2007/10/gsk-secures-inj.html).

Don

Thank you Dr. Zuhn.

I knew it was close - the day before...

Skeptical- In point of fact an attorney showed up at the hearing wearing a Grim Reaper costume, replete with a cardboard scythe to reap the rewards. Perhaps he was privy to the events surrounding the hearing. A large cheer went up when the decision in RE the claims and continuations was rendered. A bad situation averted it would seem.

Stan~

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