Design Patents Scrutinized in Reexamination

Scott Daniels | January 26, 2010

Last week in Patently-O, Dennis Crouch described the “registration-like” approach that the PTO takes to design patent applications — only 1.2% are rejected on the basis of prior art, 18.2% are rejected for § 112 or other reasons, and 81.6% receive no rejection at all.

How does this routine prosecution treatment compare with reexamination? We looked at each of the twelve reexamination requests filed in 2008 for design patents. Each of the twelve requests was ex parte; eleven were filed by a third party, only one by the patent owner. Four of the patents were involved in concurrent litigation, eight were not.

We found that the CRU (Central Reexamination Unit) at the PTO very carefully scrutinizes the claims of the twelve patents. Only four of the patents have emerged so far from reexamination — two of the requests were denied because the CRU found no substantial new question of patentability, and the validity of two of the patents was confirmed.

But the other eight patents have not fared so well. Two are still pending without a substantive Office Action, three have received non-final rejections, one has received a final rejection, and the claim has been cancelled in the final two patents.

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