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August 11, 2008



I do hope this Kyl effort goes no further than S. 1145 did. S. 1145 was bad enough, and I, like many others, are glad it died, at least for this term of Congress. We don't need "phoenix arising from the ashes" now. Kyl's proposal would be "rushed" effort at best (given the approaching elections in November), and what we don't need here is "rushed" bill that, like S. 1145, is poorly thought through and driven strictly by the "politics".

The whole problem with "quality" submissions is that the practitioner is "damned if he does, damned if he doesn't."
If he admits that certain elements are in the Prior art, then s/he is making an admission. If he doesn't (and they ARE there), then s/he may be guilty of inequitable conduct.
There is a duty to disclose a ref on an IDS. The applicant has the choise of characterizing the ref or NOT. If the applicant does NOT characterize the ref then:
a) there is no inequitable conduct;
b) there is NO presumption of validity over the reference.
We must file 'quality submissions.' Anything we say in these submissions is, by definitino, NOT construed as an admission taht something is prior art, and is not admissable evidence in litigation.
like the proposed legistlation - however, the only 'punishment' for Inequitable Conduct is that there is no presumption of validity for the mischaracterized reference.
I don't like these "quality submissions' any more than the rest of you, but since it seems that CPF $$$ is flowing and some sort of 'reform' is inevitable (unfortunately), it is important for teh patent bar to come up with proposals so that patent reform slightly devalues patents (say by 20-30%), rather than gutting them and devaluing patents by 95%.


please see http://www.piausa.org/ for a different/opposing view on patent reform

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