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June 27, 2017

Comments

Would not dissatisfied applicants usually be better off filing a continuation application with supporting declarations [rather than an expensive civil action under 35 U.S.C. § 145, in which their expert witnesses can be cross-examined] before going the Fed. Cir. anyway?

Usually, yes. But it depends on the posture of the case -- if the problem isn't a dearth of evidence on the applicant's behalf, but instead the Office's refusal to accept or rely on that evidence, there would be a benefit to being able to require the Office to provide evidence and being able to cross-examine the Office's experts. That being said, the costs (included the newly clarified additional costs) of a § 145 action almost always will outweigh the benefits.

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