Changes await the U.S. Patent and Trademark Office (USPTO) with its recent proposition of a new rule concerning terminal disclaimers, designed to overcome the so-called ‘obviousness type double patenting’, or OTDP, objections. This rule, made known by USPTO Director Kathi Vidal on May 9, 2024, is expected to alter the landscape for inventors and litigants.
The main arguments against the proposed rule, as highlighted by patent specialists Stephen Schreiner of Carmichael IP and Sarah Tsou of Omni Bridgeway, are that it would render the patent system less accessible to inventors, while exhibiting a noticeably stronger bias towards defendants in litigation.
According to Schreiner and Tsou, the proposed new rule seems to challenge the balance that currently favors innovation and invention. In essence, it could potentially disadvantage inventors who rely on the patent protection offered by the USPTO to defend their innovative ideas and products. This could, in turn, discourage the further implementation of innovative changes across a variety of sectors.
While the full impact of such a shift can only be speculated at this point, the reassessment of the patent approval process in this manner certainly affirms the dynamic nature of intellectual property law, ever adapting to suit the changing needs of its stakeholders.
The proposed rule is covered in more depth by Stephen Schreiner and Sarah Tsou on Law360.