New rules on continuations: coming to a CFR near you this July?

April 30, 2007
Post by Blog Staff

If the latest rumors are true, the USPTO may be giving inventors and patent prosecutors the newest summer blockbuster. According to Hal Wegner, on April 10, 2007, the USPTO submitted two rules to the Office of Management and Budget (OMB) for review, one related to continuation practice and "patentably indistinct claims," and another related to examination.

As reported by Dennis Crouch at Patently-O, there is a new head of the OMB, Susan E. Dudley, appointed by President Bush as a recess appointment on April 4. The OMB typically has no more than a 90 day turnaround time, so if that holds true, the rules will be published by early July, with 30 days for implementation.

The early word is that the USPTO-approved rules are likely similar to those that caused massive uproar when originally proposed in January 2006, the logic being if they were substatively changes, there would have been another notice and comment period before submission of the final rules. Assuming that is the case, then it is likely two things will happen: there will be a flood of continuation applications filed in the 30-day window before the rules become effective, and someone (or perhaps several someones) will challenge the rules as outside the USPTO's rulemaking authority.

We'll be watching to see what develops.

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