The USPTO is now publishing comments
As readers will remember the deadline for comments expires at the end of July. There is a tendency in our profession to do everything the day before the deadline, so perhaps the small mumber of comments is not surprising. But the previous deadline expired at the end of June, the extension was not well-publicised and more comments would have been expected.
However several well-written and closely reasoned comments are already on the website.
It is therefore possible to piggypack on the existing comments by pointing to the earlier comments, the points made, the author and the page and line references, adding if appropriate any further remarks.
As has been said previously this is (a) a detailed analysis game and (b) a numbers game.
Comments from companies and organizations directly involved in pharmaceutical and biotech research, and especially from companies having large in-house legal teams who have the resources to fully identify the relevant precedents (including issues of legal interpretation, the balance between Congress and the Surpeme Court and the appropriate role for administrative agencies) and formulate further detailed comments and examples will be of special value.
Preliminary indications e.g. at Bio have been that the Office remains largely content with the existing guidance. It is astonishing, for example, that a clear indication that the Amazonic Acid example will be withdrawn has not already been given, or that the USPTO now realizes that gunpowder qualifies as a composition of matter, being a mixture of more than two ingredients in defined proportions and in defined finely comminuted physical form, and that it is not a product of nature. New claims have been put forward which are arguably unhelpful and need further comment. Further effort is urgently needed if finalization of the guidance in its present over-restrictive form is to be avoided.
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