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Sterne Kessler Files In Re Owens Amicus Brief

  • 05.21.12
  • Sterne, Kessler, Goldstein & Fox

Sterne Kessler filed an amicus brief with the U.S. Court of Appeals for the Federal Circuit on May 21 in the appeal of In re Owens 2012-1261.  The brief was filed on behalf of Method Products, Inc.,  one of the fastest growing private companies in America and a leading innovator of premium healthy home and personal care products.  Method filed the brief to enlighten the Court about the inconsistent and arbitrary positions the United States Patent & Trademark Office has been taking with regard to unclaimed subject matter in design patents. 

Specifically, the issue on appeal is whether an applicant can amend an original patent disclosure to include an unclaimed (broken line) boundary  without violating the written description requirement of 35 U.S.C. Section 112.  By using examples of figures from prior issued patents amended during prosecution to include unclaimed boundary lines - including patents issued at the time Owens' application was being rejected by the Office and patents issued more recently -  Method's brief highlighted for the Court the inconsistent and unpredictable practice of the Office in making such rejections.  In addition, Method pointed out that guidance from the Office on this practice provided as recently as April of this year at USPTO Design Day 2012 further underscores the Office's confusion on the issue.  It is expected that the case will be set for Oral argument this summer. 

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