Thursday, August 07, 2008

USPTO Clarification: (Some) Continuation Rules Not Retroactive, Despite Appeal

The USPTO issued a clarification today, stating that practitioners should not try to overcompensate by taking "preparatory actions" for portfolios in light of the continuation rule appeal. Worry not: if the injunction is overturned at the CAFC (shudder), the PTO will not retroactively apply the rules in certain cases:

[T]he changes in 37 CFR 1.78(f)(1) and (f)(2) will only apply to applications filed on or after any new effective date that would be published by the USPTO after the removal of the injunction . . . [a]pplicants will only have to identify other commonly owned applications that satisfy the conditions set forth in 37 CFR 1.78(f)(1)(i) in applications that have a filing date on or after this new effective date. Similarly, the rebuttable presumption of 37 CFR 1.78(f)(2) will only apply to applications having an actual filing date on or after the effective date. Furthermore, the rebuttable presumption will only exist with respect to an application that satisfies the conditions set forth in 37 CFR 1.78(f)(2)(i) and also has a filing date on or after this new effective date.
Read the notice here.

Query: who on earth is making these filings that prompted the PTO "clarification"?

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