A recent Federal Circuit ruling that patents, which have been given extended terms due to examination delays, can be invalidated for double patenting has been causing much debate. The decision allowing a judicially-created rule to override federal law has led to considerable unease, with many fearing it may place numerous patents at risk. The entire court has been alerted to these concerns through briefs pushing for a rehearing.
The ruling in question, as critics argue, lets the judicial rule override federal law improperly. Proponents, however, stand by the principle that a remedy for official delays in patent examinations shouldn’t be an open invitation to extend the exclusivity of patents indefinitely.
The contention stems from the fear that this ruling might set a precedent which could potentially harm the patent system’s delicate equilibrium. A decisive balance between the rights of patent holders and eventual entry of patent materials into the public domain is crucial to the functioning of the patent system. This balance, many fear, is put at risk by the ruling.
Given the gravity of the situation and the potential implications for patent law and practice, a rehearing of the case seems the favored course of action for concerned parties. The ramifications of the case extend far beyond a mere extension of patent terms, hitting at the crux of patent system mechanics and its regulatory framework.
Detailed analysis and expert viewpoints related to this case are available on Law360.