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September 28, 2022


As a former Solicitor of the PTO, my opinion has always been that the business of the PTO should not be addressing the potential for post-issuance harrassment by multiple parties holding patents to obvious variations of an invention. Once the "unjust timewise extension" issue became a non-issue, the PTO should have been relieved from its role in addressing non-statutory double patenting. It's time for the Federal Circuit to overrule earlier opinions that have held otherwise. In fact, getting rid of non-statutory double patenting altogether would be an even better idea. Such law has been very confusing for a long time and added significant burdens to litigation.

"Once the 'unjust timewise extension' issue became a non-issue.."

But it has not become a "non-issue." Just because *continuations* no longer result in a term extension does not mean that an applicant cannot file a *new filing* on something that is no more than an obvious variation of an earlier filing. Perhaps the CAFC can obviate ODP as a category of invalidity for members of the same family, but that would not put an end to ODP as a category of invalidity altogether.

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