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Tafas v. Doll: Where Is the USPTO Headed?”

In what should be a major wake-up call to all patent practitioners and patent applicants, the U.S. Court of Appeals for the Federal Circuit has upheld three out of the four highly contentious rule proposals that were proffered by the U.S. Patent and Trademark Office (“USPTO”) in 2007. Although the ultimate consequences of the Federal Circuit’s decision are not yet certain (because of the possibility of an en banc rehearing, appeal, or favorable decision from the district court on the various issues that were remanded to it), this Federal Circuit decision should raise the concern of patent applicants and anyone prosecuting patent applications before the USPTO.  

The rule changes that were the subject of this Federal Circuit decision are part of what has appeared to be a systematic attempt by the USPTO to “reform” the patent system by using its unilateral “procedural” rule-making authority.  At the very least, the Federal Circuit decision will provide the USPTO with ammunition, if it chooses to use it, to try to impose its controversial plans on patent practitioners and applicants alike.

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