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Ravicher as a recycled Lemley-ism?

By Lawrence B. Ebert, Esq.

Arguments in Tafas are being heard Dec. 5. Dow Jones wrote:

The patent office said in court filings that the limits would stop opportunistic patent applicants from flooding and abusing the system.

For example, some parties file patent continuations as a delaying tactic so they can later change their applications once they have seen what technologies their competitors are developing, the office said.

The office said the flood of continuations has crippled patent examiners' ability to examine new applications. The backlog of unexamined applications now stands at more than 700,000.

An array of consumer groups and law professors are supporting the patent office in the case, saying the current system creates uncertainty in the marketplace and makes it all too likely that dubious patents will eventually be approved.

Daniel Ravicher, executive director of the Public Patent Foundation at the Cardozo School of Law in New York, said it's very difficult for a patent examiner to ever reject a patent because the applicant can keep coming back and challenge the decision again and again.

"I've seen cases where an examiner has rejected an application seven, eight or 10 times and the applicant pays the continuance fee to keep it alive," Ravicher said. "Eventually the examiner gives up and says OK because she has to move on to the next patent application."

IPBiz notes RCEs are the most frequently file form of continuing application.

Ravicher spearheaded the disaster of the re-examination of the WARF patents, wherein the references he cited to the USPTO were found not to be enabled.

See also On The Proposal To Restrict Continuing Applications, 88 J. Pat. & Trademark Off. Soc'y 743 (2006), which includes footnote 8:

At some level, the use of the word "continuation" to mean more than one thing reminds one of Raffles v. Wichelhaus, 2 H.&C. 906, 159 Eng. Rep. 375 (Ex. 1864), wherein there was one contract mentioning the ship Peerless but two different ships called Peerless. Note MARVIN A. CHIRELSTEIN, CONCEPTS AND CASE ANALYSIS IN THE LAW OF CONTRACTS 87 (4th ed. 2001)[observing that Raffles "highlights the fallibility or variability of language itself and the possibility that the parties to a contract may use the same words to express quite different aims and expectations"]. However, there is no excuse for Science to use the same word to refer to different concepts in the same paragraph.

referring to Eli Kintisch, U.S. Wants to Curtail Add-On Patents to Reduce Backlog, 313 Science 425, 427 (28 July 2006).

Full post as published by IPBiz on December 05, 2008 (boomark / email).