Today, a panel of the Court (Rader, Bryson, Prost) heard oral argument in Tafas v. Dudas before a jam-packed courthouse. Early reports indicate that the CAFC recognized, despite PTO assertions to the contrary, that the proposed continuation rules effectively set a “hard limit” of two continuing applications, and are potentially in conflict with the statute.
The court also seemed wary of the Examination Support Document (ESD) requirement (Tafas' counsel refered to it as an "Express Suicide Document"), and sharply questioned the PTO in this regard. From Hal Wegner's account:
The [PTO] General Counsel was asked whether – if he were counsel to a pharmaceutical client – he could recommend the ESD: He answered unequivocally in the affirmative. To this answer, and accompanied by laughter from the packed courtroom, the presiding judge advised the General Counsel to seek employment in the electronics or other industries.
Read more detailed accounts on the oral arguments at the PLI Blog (link1) (link2)
Also, the oral arguments are available in MP3 fromat from the CAFC website (link)