Early last month, I noted that the US Patent and Trademark Office (PTO) had proposed new rules on continuations – the ability to file unlimited amendments to a patent application. PTO claims these rules are need to reduce the backlog of applications and speed up the process. As I noted, these rules have been greeted with skepticism and opposition. Yesterday, a federal court for the Eastern District of Virginia granted the drug company GlaxoSmithKline an injunction blocking the rules.
As the Wall Street Journal summarized the arguments:
Critics of the existing system also note that many companies use continuations to delay introduction of a product, monitor market developments and then modify their patents to take advantage of emerging trends. On the flip side, opponents of the new rules said the rules were unclear, stifled innovation and would make it more expensive for small companies and individual inventors to patent their inventions.
One critic of the changes told me that the regulations essentially blame the customer of the PTO — the applicant – for filing complicated materials in order to hide poor management. If applications have become more complex in recent years then better training and operational management is necessary.
The lead plaintiff is GlaxoSmithKline, but more are expected. As one commentator said, the “Eastern District will be awash in Amici.”
The case is not expected to be decided at this level until next year. And then there will likely be appeals. So stay tuned. This one has all the makings of a knock-down, drag-out fight.