Patent Baristas

Gene Quinn, Jr., the force behind the Patent Briefs at the Practicing Law Institute, has struck out in a new venture.  Gene has now brought us a new patent blog, PatentFools.com.  PatentFools is described thusly:

The point of PatentFools is to try and identify wrongs, articulate positions, influence decision-makers and have some fun saving the world for generations to come. Essentially, we are fighting for truth, justice and the American way, not unlike Superman… well… very much unlike Superman if you are concerning yourself with the faster than a speeding bullet, more powerful than a locomotive and the ability to leap tall buildings with a single bound. We are, however, not affected by kryptonite, so at least we have that going for us, which is nice!

Why go for yet another patent discussion venue?  Well, according to Gene, while he will continue to write for PLI, there are some limitations on what he can write given the need for PLI, as a nonprofit, to keep its tax exempt status.

As an example of what to expect, Gene calls for the USPTO to withdraw its appeal of the permanent injunction enacted by a district court prohibiting the USPTO from putting the new rule changes into effect (Tafas v. Dudas).

The Court of Appeals for the Federal Circuit lowered any expectations the Patent Office and the Department of Justice had about getting the permanent injunction of the proposed claims and continuations rules overturned.

In Cooper v. Dudas, the Federal Circuit was asked to decide whether the the Patent Office had the authority to interpret the term “original application,” a term used in a section of the American Inventors Protection Act with respect to new provisions on filing for an inter partes reexamination of an issued patent.

The Federal Circuit reviewed the authority the Patent Office has to implement substantive changes to the law regarding patent applications:

We have also previously held that 35 U.S.C. § 2(b)(2) does not authorize the Patent Office to issue “substantive” rules. See Merck & Co. v. Kessler, 80 F.3d 1543, 1549-50 (Fed. Cir. 1996). “A rule is ‘substantive’ when it ‘effects a change in existing law or policy’ which ‘affect[s] individual rights and obligations.’” Animal Legal Def. Fund, 932 F.2d at 927 (quoting Cubanski v. Heckler, 781 F.2d 1421, 1426 (9th Cir.1986), vacated as moot sub nom., Bowen v. Kizer, 485 U.S. 386 (1988)). “In contrast, a rule which merely clarifies or explains existing law or regulations is ‘interpretative.’” Id.

Expressing the view that the USPTO stands virtually no chance that the Federal Circuit will overrule the permanent injunction stopping the implementation of the claims and continuations rules, Gene implores the Office to relent:

In fact, the Federal Circuit is not likely to even hear oral arguments in the GSK matter until late Fall 2008, which is after the next election.  Even if the Federal Circuit does hear the case late Fall 2008, no decision will be forthcoming until late Winter 2009 at the earliest, which means that by the time the Federal Circuit can agree with Judge Cacheris there will be a new President, a new Director of the Patent Office and a new Attorney General.  So why continue with a losing appeal?

Any fool could see the result.

See more here:  Tafas v. Dudas: The Continuation Wars