War Drums Beating Louder in the Continuation Rule Battle

"Use humility to make the enemy haughty. Tire them by flight. Cause division among them. When they are unprepared, attack and make your move when they do not expect it."

-- SunTzu, "the Art of War"

Gene Quinn, and the good people over at the PLI Blog have their sharp eyes locked on the Glaxo litigation against the PTO, and have gotten their hands on the AIPLA's amicus brief, filed today in the E.D. Virginia. In short, the AIPLA urges the court to issue the TRO and preliminary injunction:

AIPLA focuses here on the related issues of irreparable harm and the public interest. It particularly addresses the irreparable harm caused by the retroactive impact of applying the new Rules to pending patent applications. Those applications were filed, and substantial resources committed, in reliance on fundamental principles of patent law that have applied for more than a century. As explained more fully below, the retroactive impact of the new Rules will cause irreparable injury not only to the GSK Plaintiffs, but to numerous patent application owners (whether business entities, universities, or individual inventors) throughout the country and over a wide spectrum of technologies.1 A delay in implementing the new Rules pending resolution on the merits, by contrast, should not adversely impact PTO operations or policy. For these reasons, AIPLA urges the Court to grant the temporary restraining order and preliminary injunction sought by the GSK Plaintiffs.

Read the brief here (link)

Additionally, David Kappos, VP and Assistant General Counsel for IBM, filed a declaration in support of the AIPLA, stating that the rules may result in an "irreparable loss" to IBM's IP rights - Read the Kappos declaration here (link)

Other declarations included Joseph Hetz (Brinks Hofer) and Burt Mages (Vierra Magen Marcus & DeNiro) on behalf of SanDisk Corporation, and Samson Helfgott, from Katten Muchin. You can view their declarations here, here, and here.

More notably, Glaxo obtained an affidavit from Harry Manbeck, who was a former PTO commissioner under George H. W. Bush, and is now a member of the Rothwell Figg firm in Washington, D.C.. Manbeck's declaration takes the PTO to task for exceeding their authority in promulgating the new rules, and further submits that the ESD requirements are almost impossible to follow:

"[I]t is my opinion that the Director and the PTO have exceeded their statutory authority in promulgating the Rules, that the Rules exceed the plain language of the Patent Act, and that the Rules' ESD requirement hopelessly lacks guidance."

Read the Manbeck declaration here (link).

Also, as reported by Hal Wegner today, an upper-level PTO management member broke ranks today and distributed this article written by Joff Wild from IAM Magazine over the patent bar's reaction to the new rules:

I have been coming to Washington DC for AIPLA meetings since the mid-1990s and I do not think I have ever known an atmosphere like it. It’s not just the shrug your shoulders, here we go again, kind of reaction to a new USPTO rule or guideline that you normally get. Instead, patent practitioners are angry, they are frustrated and they are perplexed . . . it seems to me that the relationship between the USPTO and practitioners is profoundly unhealthy at the moment. That cannot be good for anyone who is interested in the future of the US patent system. There is real venom – sometimes even contempt – in the language I have been hearing from members of the US patent bar over the past few days when they speak about the office. It is actually quite shocking. Fences need mending and they need mending fast.