Good luck to you, me, us, and all longs.

John Whealan Bio:

http://www.uspto.gov/biographies/bio...

Article:

http://www.law.washington.edu/CASRIP...

Excerpt explaining how USPTO & Courts have a different responsibility/view point for validity issues:

“It is interesting to think about how a re-exam differs from a District Court proceeding.Let’s imagine that we have a case in Judge Cohn’s court and a re-exam is filed at the same time. My bet is that Judge Cohn is not going to stay the District Court case. Furthermore, the validity issues are percolating in District Court and at the USPTO. Is it the same set of review? Not quite. Judge Cohn has to give the patent a presumption of validity and the USPTO does not; there is no presumption of validity in a re-examination. Less evidence is necessary for the USPTO to invalidate or not issue the patent; that is one of the differences in the burdens and presumptions the USPTO office uses to review. Secondly, the USPTO gives claims their broadest, most reasonable interpretations. If a claim is subject to two possible interpretations, the USPTO uses the broader interpretation, so someone cannot then later sue under the narrow one. USPTO takes the broader of the two; however, the opportunity exists to narrow the claim if desired. In Judge Cohn’s court, the case law requires claim interpretation to preserve the patent validity. Thus, there’s a difference between the way validity issues in a re-exam case will be considered versus a District Court proceeding.”

Quote explaining how often the USPTO grants a re-exam:

“A re-exam is granted 90% of the time, which, in my personal opinion, is high, maybetoo high.”

Quote explaining how long it usually takes the USPTO to complete the re-exam:

“How long does it take to complete a re-exam? Approximately one to two years.”

Excerpt explaining statistics of claims modification during re-exam process:

“The story I hear is that the USPTO grants re-exams pretty readily, but the claimsusually get out the door, or the important ones do. Where all claims were confirmed, out of all the re-exams, about 26% were re-examined. That means that ultimately nothing was done to any of the other claims. That’s a quarter. That’s not so high. Where all the claims were cancelled, about 10% were re-examined. Again, that is a pretty low number. Where there were claim changes – a pretty broad group (this can mean one claim was amended, they all were amended, they were narrowed, etc.) – 64% were re-examined. Thus, in about two-thirds of the cases something changes, showing that the system is probably working. Thus, at least the re-exam doesn’t seem a waste of time.”