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ConsumerWatchDog and PubPat: they're back

By Lawrence B. Ebert, Esq.

Fresh from their stinging defeat in the WARF patent re-examinations, ConsumerWatchDog and PubPat are back with a brief advocating reversal of ED Va in Tafas v. Dudas. MarketWatch writes:

The groups joining in filing the Public Interest Amici brief are: The Public Patent Foundation ("PUBPAT"), AARPP, Computer & Communications Industry Association ("CCIA"), Consumer Watchdog (Formerly the Foundation for Taxpayer and Consumer Rights), Essential Action, Initiative for Medicines, Access & Knowledge ("I-MAK"), Prescription Access Litigation ("PAL"), Public Knowledge ("PK"), Research on Innovation ("ROI"), and Software Freedom Law Center ("SFLC").

"The public interest overwhelmingly supports the USPTO's Final Rules for at least two significant reasons," the brief said. "First, they will enable the USPTO to curtail abuses of the patent application process made by those patent applicants who seek to pervert the system to gain an unfair advantage. Second, the Final Rules will help the USPTO improve patent quality, which is a critical issue for ensuring the patent system benefits the American public."

The new rules were to have been implemented by the Patent Office on Nov. 1, 2007, but were blocked by suits brought by drug maker GlaxoSmithKline and inventor Triantafyllos Tafas.

Under current rules which allow unlimited continuations, USPTO examiners who have repeatedly rejected an application often face an endless stream of continuation applications that "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. [obliquely referring to a law review article in BULR, "Ending Abuse...."]

And, patent lawyers are attacked:

The legal papers, available at http://www.pubpat.org/assets/files/AmicusBriefs/PUBPAT_PTO_Rules_CAFC_Brief.pdf or at http://www.consumerwatchdog.org/resources/PTOAmicibrief.pdf, also noted that while briefs filed opposing the new rules claimed they were acting in the "public interest", in fact they represented the narrow interests of patent holders and patent attorneys.

See also

http://ipbiz.blogspot.com/2008/07/consumer-watchdog-gets-it-wrong-again.html

http://ipbiz.blogspot.com/2008/03/warf-smokes-pubpat-ftcr-in-last-two-re.html

http://ipbiz.blogspot.com/2008/03/bias-of-eli-kintisch-shows-in-small-win.html

Full post as published by IPBiz on July 30, 2008 (boomark / email).