We heard about the threats, and it didn't take long for someone to follow through. Yesterday, Dr. Triantafyllos Tafas filed a declaratory judgment action in the E.D. Va., arguing that the new continuation rules are null and void, and is also seeking a preliminary and permanent injunction prohibiting the USPTO from putting the new rules changes into effect.
The complaint alleges that the USPTO exceeded its Congressionally-delegated rulemaking authority and that the new rule changes specifically violate Section 120, 132, and 365 of the Patent Act. It is further asserted that USPTO failed to comply with the Administrative Procedure Act in promulgating the new rule changes. The suit also alleges that the USPTO has engaged in retroactive rulemaking and has failed to consider USPTO-induced reasons for multiple continuation filings.
From the complaint:
The Revised Rules should be preliminarily and permanently enjoyed and declared null and void because, among other things, they violate: (1) Sections 2, 120, 13 1, 132 and 365 of the Patent Act (35 U.S.C. §§ 1 et seq.) by exceeding the rule making authority delegated to the Defendants by Congress; (2) Sections 553(c) and 706(2) of the APA (5 U.S.C. §§ 553(c) and 706(2)) by, among other things, purporting to enact rules with retroactive effect; failing to consider all the relevant matter presented as required by 5 U.S.C. §553(c); and, by promulgating rules that are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, contrary to Plaintiffs constitutional rights and in excess of the USPTO's statutory jurisdiction and authority; and (3) Article I, Section 8, C1. 8 and the Takings Clause of the Fifth Amendment of the United States Constitution.Read a copy of the complaint here (link)