The U.S. Patent and Trademark Office is reviewing the Ex Parte Baurin case regarding obviousness-type double patenting (ODP). The Patent Trial and Appeal Board previously reversed an examiner's ODP rejections based on a reference patent that was later filed and expiring. The Board's decision was influenced by the Allergan case, which clarified that a later-filed patent cannot invalidate a first-filed patent. Amicus briefs have been submitted, with most supporting the Board's analysis, while some argue for the examiner's rejections based on CAFC precedent.
"[The CAFC has] repeatedly sustained ODP rejections where the reference patent has a later priority and patent-term filing date than the application under examination."
"The Board found that the reference patent the examiner relied upon for its ODP analysis... was not a proper ODP reference because it was later filed and later expiring than the application in the present case."
"The purpose of the ODP doctrine is to prevent patentees from obtaining a second patent on a patentably indistinct invention to effectively extend the life of a first patent to that subject matter."
Read at IPWatchdog.com | Patents & Intellectual Property Law
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