Appeals court backs patent reform

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A federal appeals court has ruled in favor of new U.S. Patent and Trademark Office regulations that would curtail abusive behavior by patent applicants and improve patent quality.

Consumer Watchdog was one of a number of public interest groups that joined with the Public Patent Foundation at Benjamin N. Cardozo School of Law (PUBPAT) in filing a friend-of-the-court brief on behalf of the PTO’s new rules.

The ruling by the he U.S. Court of Appeals for the Federal Circuit in Washington, DC (CAFC) on Friday overturned a summary judgment victory against their implementation won by drugmaker GlaxoSmithKline Plc.

The drugmaker said the new regulations were substantive  and exceeded the PTO’s rule-making authority. We backed the PTO position that they are procedural.

Glaxo told Reuters it was reviewing its options and added:

"We are disappointed with the court’s rulings that the final rules adopted by the Patent Office are procedural, given their dramatically negative effect on a wide range of industries and innovations."

I figure that almost anything disappointing to a big drug company is good for consumers.

The problem with current PTO rules, which allow unlimited continuations, is that USPTO examiners who have repeatedly rejected an application often face an endless stream of continuation applications. These continuations may well succeed in "wearing down the examiner," so that the applicant obtains a broad patent not because he deserves one, but because the examiner has neither the incentive nor will to hold out any longer, according to a study by professor Mark A. Lemley of Stanford Law School and Kimberly A. Moore, now a Circuit Judge on the U.S. Court of Appeals for the Federal Circuit.

"This is a substantial victory for the public interest in that it paves the way for the PTO to implement sound rules to improve the quality of the the patent application process," said Dan Ravicher, PUBPAT’s executive director.

The battles is not over.  The CAFC decision sends the dispute back to the lower court for further action. Nonetheless, Ravicher is right — this round went to the good guys.

Consumer Watchdog
Consumer Watchdog
Providing an effective voice for American consumers in an era when special interests dominate public discourse, government and politics. Non-partisan.

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