PATENTEES HAVE A BAD WEEK AT PTO BOARD

Scott Daniels | May 19, 2010

The PTO Board of Appeals decided five ex parte reexamination appeals last week.  In four the Board affirmed rejections of all pending claims, in only one did the Board reverse the Examiner’s rejection.  This is the opposite of the Board’s treatment of appeals in non-reexamination cases where an overwhelming majority of decisions are in favor of the applicant.

A reading of the individual decisions also suggests the Board’s comparatively strict treatment of patent claims reexamination.  In two of the decisions, the Board chose an especially broad construction of the claims to find that they were unpatentable over the prior art.  In a third decision, the Board broadly construed the disclosure of the prior art.  In the fourth case affirming a rejection, the patentee itself had sought the reexamination.

In the sole case in which the Board reversed the Examiner, his claim construction was clearly too broad and did not justify, by any objective analysis, rejection of the claims.

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