Court Dolls
The CAFC decision TAFAS v. Doll (fed. Cir. 3/20/2009)
I. INTRODUCTION AND SUMMARY
<p> On March 20, 2009, a panel of the Court of Appeals for the Federal Circuit ("CAFC") decided to appeal the USPTO Court decision requiring the USPTO rules limiting
applicants' rights to claims, continuations, and file requests for continued examination (RCE). However, the panel was broken, with a two panel member majority opinion (Judges Bryson and Prost) a confluence (Judge Bryson), and a partial concurrence and dissent in part (Radar right). Given the fractured nature of the panel decision and the fact that the panel case remand to the court for further proceedings, it is very likely that the ordered rules will not come into force in the near future. It is also likely that new en banc treatment, given the fundamental differences in the positions of the members, and given the huge influence on the outcome of this case will have on the patent. <p> The majority held that the USPTO rules limiting the number of continuations was invalid because it was contrary to statute. However, the majority held that the USPTO rules Research supporting documents (ESDS) and the requirement limiting the number of RCEs to one per patent family were not in violation of specific legal departments on the issues on appeal
the profession. <p> the majority opinion also stated that the USPTO would be a weaker rule to impose restrictions on the number of continuations, the particularly a reduction in applications Claiming priority in a chain back to an original application, as opposed to restrictions on the total number of preference rule claims on an original application. <p> panel remand the case to the court for the treatment of other issues not addressed on appeal and dependents of the court in determining whether the ESD and RCE rules were invalid in view of other things. <p> Given the indication that a weaker majority rule limiting continuations may not be invalid, and the majority imprimatur on the reduction of RCEs and Emission Scenario Documents, applicants must start planning this, despite ongoing legal uncertainty. In particular, applicants should be applications to an appeal instead of the assumption that they will be able to continue the prosecution. <p> following section describes the specific holdings of the majority.
<p> II. SPECIAL BUSINESS OF THE MAJORITY <p> 1. Final rules limiting claims and pursue and Emission Scenario Documents were found to be procedural, not substantive, and therefore the interpretations of the corresponding USPTO statutory sections were subjected to respect. ("Having concluded our discussion of the reasons why the final rules are procedural ,…"). Therefore Chevron respect applies to the interpretation of the USPTO
Patent Act provisions relating thereto ("Because each of the procedural rules, we must, as discussed above, give Chevron respect for the interpretation of the USPTO of the provisions of the Patents Act relating to "proceedings in the Office." <p> 2. FINAL Article 78 restriction the number of continuations are deemed incompatible with the statute and therefore invalid. ("We agree with the court that Final Rule 78 is contrary to 120 ,…"). However, the USPTO would be able to see the serial number of priority claims, unlike the total preferred claims on an original application to a minimum. ("But the problem In Henriksen was whether there was a limit to the number of prior applications through which a
copendency chain can be traced to the benefit of the filing date of the earliest of a chain of pending applications to obtain. "Id. at 254. In other words, the question related to the permissible length of a serial chain of continuation applications, not the total number of continuation applications that can be submitted. Specifically, the dispute was over the meaning of clause [3b] above 'a also entitled to demand payment of the filing date of the first application. " Id. at 260-61. The ambiguity in clause [3b] can not save Final Rule 78. The Final Rule limits continuation applications based on the total number of such applications previously filed, not the length of a given serial chain of such applications. 37 CFR 1.78 (d) (1) (i) (B). By its terms, Final Rule 78 would apply to an applicant intended to submit three continuation applications, while the first application is still pending, although each
of these applications is fully within clause [3a] and therefore comply with any reasonable interpretation of Clause [3] and the rest of 120. Therefore, while we must defer to a reasonable interpretation of the USPTO in clause [3], there is no such interpretation that the validity of Final Rule 78 is maintained. ") <p> 3. FINAL Rule 114, limiting the applicant to submit an RCE per patent family was not in conflict with the statutes and not invalid. ("We do not find that 132 unambiguously dictates that its provisions are applied on a per application basis. CF. Henriksen, 399 F.2d at 258 ("How to read" an application " not necessarily limited to a single application. "), 1 USC 1 (" [W] ords in the singular and take several individuals, parties, or things to apply. . . . "). Therefore, because we defer to a reasonable interpretation of the USPTO's
of the statutes, we conclude that Final Rule 114 may well be applied on a per household basis. See Cooper Techs., 536 F.3d at 1337-1338. ") <p> 4. FINAL RULES 75 and 265 imposing 5 / 25 claim limits and rules Emission Scenario Documents file not found to be contrary to statute and therefore not valid. ("We need not decide whether the USPTO may impose a limit on the number of claims of the applicant exercise because we do not find that the ESD requirement makes such a restriction. Rather, it requires only that an ESD be submitted more than five independent or twenty-five total assets are included in certain sets of pending requests. Since we can not, as discussed above, conclude that Final Rules 75 and 265, on their face, effectively applicants submitting insurance for successful Emission Scenario Documents we also can not conclude that these rules an absolute limit on number of claims in violation of 112, [section] 2. ")
<p> III. CONCLUSION The majority <p> majority concluded as follows a summary of her business, and explaining the restrictions the decision that the court should address the remand. <blockquote> III. CONCLUSION <p> light of the foregoing, we conclude that the final lines 75, 78, 114, 265 and the procedural rules that are within the scope of the rules of the USPTO's authority. However, we find that Final Rule 78 in violation of 35 USC 120 and is therefore invalid. Accordingly, we affirm the district court granting summary judgment that Final Rule 78 is invalid, vacate the grant of interim relief on the Final Rule 75, 114 and 265, and remand for further proceedings consistent with this opinion. <p> Since the complexity of this case and the many arguments
presented on appeal and in court, we think it is important to
clearly summarize what we believe continues to court on remand.
This opinion is not a decision the following issues: whether one of the Final
Rules, either on their face or as applied in specific circumstances are
arbitrary and capricious, or one of the final rules are contrary to the Patent
Act in ways not specifically addressed in this opinion, or any USPTO
Regulatory subject to notice and comment regulations under 5 USC 553;
or one of the final rules are unacceptable vague, and whether the final
Rules are impermissible retroactive. COST <p> <p>
Each Party shall bear its own costs. <p>
Confirmed-in-part, vacated-IN-PART, and sent </ blockquote> <div Richard Neifeld can be reached via phone at 704-415-0012 ext. 21 or via the company's web site: http://www.neifeld.com.
About the Author
Richard Neifeld, Ph.D.
Patent AttorneyEmail address: general@neifeld.com
Former chair of the Interference Committee and current chair of the Services Subcommittee of the Interference Committee of the American Intellectual Property Lawyers Association (AIPLA). Member of the AIPLA, Virginia Patent Lawyers Club, ASIPI, AIPPI, and the Patent Information Users Group. Extensive experience in “specialty matters” in the U.S. patent office, such as appeals, petitions, reexaminations, reissues, public protests, and extensive experience in foreign prosecution, and interferences and related litigation. Extensive experience in due diligence work, including investigations, database searching, and opinions.
Admitted to practice before the United States Patent and Trademark Office, the Courts of the Commonwealth of Virginia, the United States Court of Appeals for the Federal Circuit, the United States Court of Appeals for the Fourth Circuit, and the United States District Court for the District of Columbia.
Widely published in IP law publications, frequent lecturer to patent attorneys on patent law topics, and an active member of the patent bar associations. Founder and moderator for the popular “patentinterference” group on the groups.yahoo.com/group/patentinterference web site, which is a forum for general information on patent law and practice with a focus on patent interference issues.
Co-founder of the www.PatentValuePredictor.com automated patent valuation service, co-inventor of the underlying macro-economic model for valuing patents, and programmer of some of the code powering the automated valuations.
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