Monday, October 29, 2007

Tafas Files Motion Opposing Dismissal in PTO Continuation Rules Case

Tafas filed his opposition to the USPTO's motion to dismiss the amended complaint on Friday. Earlier, the PTO filed a Motion to Dismiss the case, predicated on alleged lack of standing and ripeness.

Tafas responds:

Dr. Tafas is not required to show current harm under each and every permutation or sub-paragraph of the Revised Rules and/or the Patent Act of 1952, 35 U.S.C. §§ 1 et. seq., in order to attain standing. The mere fact that the USPTO has changed the substantive criteria for patent eligibility, fundamentally altered the “rules of the game,” and foreclosed Dr. Tafas’ options and rights provided for by Congress causes him immediate harm including, among other things, immediately impacting how he prosecutes his pending patent applications. The harm could be no more palpable. Of course, having established injury, satisfaction of the causation and redressability elements follow as a matter of course. Invalidating the Revised Rules that are causing Dr. Tafas harm will alleviate the injury.

Dr. Tafas’ challenge to the validity of the Revised Rules is ripe because it raises purely legal challenges. The peculiarities of Dr. Tafas’ own personal patent prosecution history will have absolutely no material bearing vis-a-vis the resolution of these macro-legal issues, which deal with separation of powers, scope of delegated rule-making authority and interpretation of constitutional and statutory provisions. Finally, Dr. Tafas does state a valid APA claim in his Second Count predicated on the Revised Rules being inconsistent with the Patent Clause and the Fifth Amendment of the United States Constitution.

Read Tafas' opposition here (link)

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