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« Evolution of Inequitable Conduct | Main | USPTO News: Proposed Agenda for Next BCP Meeting »

May 28, 2008

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Did someone forget that these rules were proposed a long long time ago? Or are you hoping they'll magically stop the appeal and the lawyers working on it because someone says "no new regulation proposals"?

Dear e:

As for the appeal, the timing works out that it is highly unlikely the process will be over before the change of administration, if only because Judge Cacheris did not rule on the many other grounds asserted by plaintiffs against the new rules. So even if the CAFC were to overturn Judge Cacheris's decision, the case will have to go back for consideration on these other grounds, with possibility (likelihood) for appeal no matter how Judge Cacheris might rule.

And although it is possible that the Office will try to publish the pending rules packages as final rules (I don't put anything past them), when the President's Chief of Staff says he doesn't want to follow prior administrations' tendencies to pass new rules that the next administration quickly reverses (which President Bush did for a host of environmental rules put in place by President Clinton in the waning days of his administration), I think the message is clear: our time here is over.

Thanks for the comment

They're already published as final rules so far as I know, so they're published but merely enjoined from taking effect. I may be wrong but there seems to be a difference in the two situations of 1. not having published them yet and 2. having them published but prevented from going into effect by a legality. Seems to me that might be a crucial difference in this case.

Perhaps there is some other legal nuance which I haven't accounted for that could be relevant?

Dear e:

Pardon me for mixing apples and oranges. You are correct about the new continuation/claim limitation rules - they are final rules that have not gone into effect only because of the injunction. My point was that there are other legal hurdles besides the current appeal before they can go into effect, and by the time these get sorted out there will be a new administration (and who knows what they will do).

As for the other rules packages, they have been published for comment and at least some have been sent to the OMB; however, the Office has not yet published them as final rules. I think these are now in question in view of Mr. Bolton's memo, since whether vetted or not they will be "new" in the sense of imposing new requirements on the public (or at least our little portion of the public). The memo seems to indicate a philosophical tendency not to impose new rules in the last 6 months of this Presidency.

But, hey, time will tell. Thanks for the comment.

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