"The USPTO is desperate to enact severe disincentives for appeals, which are on the rise due to increasingly unreasonable rejections by examiners, and will mushroom in number if and when the two-continuation limit takes effect.

Last Summer USPTO Director Dudas published new Draconian appeal brief rules, i.e. rules that impose incredible formal requirements on briefs filed before the USPTO Board of Appeals.   The actual effective date of the new appeal brief rules is very difficult, if not, impossible to calculate.

Patent lawyers often find out after the fact that propsed rules have been made final on a certain day. This has to due with the complexities of the Administrative Procedures Act (APA) under which the executive branch has rule making authority in areas permitted by statute.

Unlike the illegal continuation limits, I don't see any legal impediments to the USPTO Director's enacting of the new Draconian appeal brief rules. They make the writing of the brief much more complex and require all sorts of admissions against interest which the USPTO will almost certainly use against the Appellants in regard to obviousness rejections.

Technically any case that has been twice rejected can be appealed, whether or not there has been a final rejection.

Therefore, the reason for this e-mail is to alert you to the fact that I could provide you with a list of current cases ...to appeal at this time, while we are still under the less stringent brief requirements.

On the other hand, the client has no outstanding office actions (i.e. those that have not yet been responded to) you may choose to play out the string, and not file any pre-emptive appeals.

The USPTO is getting so anti-patent that it is getting much more difficult to obtain U.S. patents, particularly ones with broad claims. "

(Letter from a veteran Patent Attorney)


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