Implementation of New Appeal Rules Delayed

On December 10, 2008, the United States Patent and Trademark Office (USPTO) issued a Notice in the Federal Register indicating that the new rules applicable to the patent appeals process are not being implemented as originally planned.  According to this Notice, the Office of Management and Budget (OMB) has not completed its review of the rules and is still reviewing information on the proposed rules.  The delay is likely due to substantial questions being raised as to the USPTO’s estimates for the cost applicants will incur in complying with the new rules.  BREAKING NEWS: USTPO Appeal Rules Delayed by OMB (December 9, 2008) (http://www.pli.edu/patentcenter/blog.asp?view=plink&id=385).  It is estimated that the OMB action will delay implementation until at least late January 2009.  As previously noted in Fadi N. Kiblawi and James G. McEwen,  An Overview of the New Rules for Appeal Briefs  STEIN, MCEWEN & BUI LLP NEWSLETTER, pp. 18-21  (Vol. 4, Iss. 3)(September 2008), this rule package had encountered substantial objections from the Intellectual Property community due to the substantial new risks and burdens being visited on the applicants.  Therefore, until further notice, applicants need not comply with the proposed new rules for cases on appeal.

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