Tuesday, April 01, 2008

*** USPTO Continuation Ruled Dead (For Now) ***

Judge Cacheris from the ED Va. granted GSK’s and Tafas’s Motions for Summary Judgment finding that the PTO’s "hard limit" on the number of continuation applications and claims per patent were excessive extensions of PTO authority:

Because the USPTO’s rulemaking authority under 35 U.S.C. § 2(b)(2) does not
extend to substantive rules, and because the Final Rules are substantive in
nature, the Court finds that the Final Rules are void as ‘otherwise not in
accordance with law’ and ‘in excess of statutory jurisdiction [and] authority.’
5 U.S.C. § 706(2).
The 26 page opinion mainly addressed the "substantive" aspect of the rules and didn't stray further.

Expect the PTO to hit Congress hard on S.1145 to give it statutory authority - such a provision would effectively override the district court's ruling.

Read opinion here (link)

Read order here (link)

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