The curious case of the new rules timeline
I recently noticed the strange timeline that has developed for the controversial continuation and claim limit rules promulgated by the Patent and Trademark Office (and currently subject to a permanent injunction via Tafas v. Dudas).
Consider these events:
1. The Patent and Trademark Office introduced the controversial continuation and claim limit rules during the first week of the year way back in 2006. Happy New Year!
2. When making the rules final, the Office decided to draw the line in the sand on November 1, 2007, placing the deadline for filing rules-inspired continuation applications on Halloween. Happy Halloween!
3. On that same day, the United States District Court for the Eastern District of Virginia issued a preliminary injunction, temporarily preventing the Office from implementing the rules. Happy Halloween, part two!
4. On April 1, 2008, District Court Judge Cacheris permanently enjoined Director Jon Dudas and the Patent and Trademark Office from implementing the controversial continuation and claim limit rules. Nope, this was no April Fool’s joke.
5. The Court of Appeals for the Federal Circuit has scheduled oral argument in the appeal of the new rules injunction for December 5, 2008, which, of course, is the annual Day of the Ninja.
All kidding aside, the timing of the oral argument is a bit strange, too. Consider this - we have a lame duck administration with lame duck policies, and a President-elect with a yet-to-be announced Director of the Patent and Trademark Office and yet-to-be announced administrative policies. Will the new PTO administration support the rules? Will they pursue them with the same fervor as Director Dudas? Or, will the new PTO administration choose to abandon the rules, perhaps in an effort to mend fences in the partnership that used to exist between the Office and its stakeholders?
The court has a calendar to manage, of course, and the hearing date is probably the result of standard scheduling procedures. But, arguing this case in December is probably the strangest event on the new rules timeline. What if the PTO wins on appeal but the new administration doesn’t support the rules? What if they lose but the new team has somewhat less passion for the rules than the Dudas adminstration does? Do they appeal again, as the current administration has promised?
In the end, with either a win or a loss, it’s possible the rules might just disappear depending on the policies of the new administration, meaning our resource-strapped Patent and Trademark Office might have just wasted untold amounts of time and money.
With a hearing in December, the court will likely hand the new administration a ruling as the ink is drying on the new business cards. I’m betting on February 14th, Valentine’s Day.
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[...] Surely any talk from the Chief Judge is worthy of attention and guaranteed to be interesting, but the timing of the Sughrue Symposium should really attract the spotlight. At that time, we’ll likely be living with a new Director of the Patent and Trademark Office and his/her management team. We’re also likely to have a decision in the Tafas v. Dudas appeal by then, the response to which - no matter the outcome - will tell us a lot about the new administration. [...]