Could the "New Rules" Nightmare Finally Be Over?

    By Kevin E. Noonan --

Hal Wegner has shared with Patent Docs papers filed by the Department of Justice (DOJ) on Friday, asking the Federal Circuit to defer proceedings on its en banc review of the panel decision in Tafas v. Doll.  The basis for this request is to give Under Secretary-designate David Kappos the opportunity to consider what action should be taken in the case.  The motion was filed as a joint motion of the DOJ and plaintiffs Dr. Triantafyllos Tafas and GlaxoSmithKline.

Appellants' brief is currently scheduled to be due on August 5th, with appellees' brief due 20 days thereafter and Appellants' reply 7 days after that date.  Oral argument is scheduled for October 7th.  The joint motion asks that "briefing and oral argument" be stayed until 60 days after the Senate confirms the Kappos appointment as Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office.  In the event that the Office wishes to continue with en banc review, the motion asks for 30 days from the end of this 60 day term for the Appellants' brief to be due, with the same relative timing for following briefs as are now scheduled.

The brief in support of the joint motion states that the stay is requested to "give the new Director, if confirmed, an opportunity to examine the rules at issue in this case and determine what course the USPTO should take in the future with respect to those rules, including whether to rescind the rules."  While rescission of this rules package is a hopeful prospect, it should not be forgotten that the panel decision was in the main favorable to the Office, holding that three out of the four challenged rules were within the Office's procedural rulemaking authority (see Patent Docs post).

Assuming the new Kappos regime in the Patent Office is committed to working with, rather than against, its customers and their representatives in the patent bar, this action may be the first step towards restoring the historical amity between the Office and its constituents.

Comments

[Madame P J Bailey]

Will the U S Senators on the Judiciary Committee question David Kappos about any information he has on suspect insider trading at IBM ?

Visit -- ibmTheWidowMaker com

[Patrick]

Whew, for a second there, I thought you wrote "historical ENMITY," Kevin! In any event, I really hope this signals a chance for the new Director to think about the scorched earth policy these rules would engender. Who knows, maybe we won't have to pay that annual registration fee either!