By Donald Zuhn --
Yesterday, we reported on a Notice published by the U.S. Patent and Trademark Office in today's Federal Register announcing a delay in the effective date of the new rules relating to Practice before the Board of Patent Appeals and Interferences in Ex Parte Appeals (Appeals rules). Today, the Patent Office placed announcements regarding the appeals rules delay on the home page and "News and Notices" page of the Office's website. The Office's announcement indicates that new effective and applicability dates for the appeals rules will be identified in a subsequent announcement. The Office also states that it will continue to accept appeal briefs that comply with either the current or new rules.
As suggested by Ron Katznelson (at right) in a comment to our earlier report:
(a) The USPTO will likely use the fact that some filings are made under the new rules to later argue that the public does not really care much which rules are used - thereby making a false point about lack of incremental burdens.
(b) It is also clear that appeal cases that would be most negatively impacted by the new rules would naturally be filed under the old rules and therefore the voluntary filings under the new rules would be heavily biased towards the simple and short cases. The USPTO will most likely use their "junk science" methods to characterize the ensemble of appeals filed under the new rules based on this voluntary highly biased population. This will enable the USPTO to falsely characterize all appeals if filed under the new rules.
(c) It is unlikely that the new appeal rules will survive proper OMB PRA review. As numerous comments show, certain features of the new rules would have to be withdrawn or modified substantially. Therefore, practitioners' "learning curve benefits" from attempting to follow rules that may never survive are doubtful at best.
Dr. Katznelson was one of twelve parties to submit comments in response to the Patent Office's June 9th request for comments on the Office's estimates for additional burdens imposed on applicants by the new appeals rules (see "Patent Office Posts Comments on New Appeals Rules"). Dr. Katznelson, the President of Bi-Level Technologies, is also a named inventor on a number of U.S. patents.
For additional information regarding this topic, please see:
• "Patent Office to Publish Notice Delaying New Appeals Rules," December 9, 2008
• "More on Ex parte Appeal Rule," October 10, 2008
• "Patent Office Posts Comments on New Appeals Rules," September 11, 2008
• "More on USPTO Rulemaking Practices,"July 21, 2008
• "USPTO Rulemaking Practices Being Called into Question (Again)," July 20, 2008
• "New Appeals Rules Published," June 10, 2008
• "Patent Office to Publish New Appeals Rules on Tuesday," June 9, 2008
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