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ARTICLE · 07 AUGUST 2020

RCE/National Stage Kerfuffle: PTO Creates A Nightmare Scenario

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Much has been written lately about the USPTO's recent enforcement of its controversial interpretation of filing Requests for Continued Examination (RCE) in National Stage applications...

United StatesIntellectual Property
Oblon, McClelland, Maier & Neustadt, L.L.P
Oblon, McClelland, Maier & Neustadt, L.L.P
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Much has been written lately about the USPTO's recent enforcement of its controversial interpretation of filing Requests for Continued Examination (RCE) in National Stage applications (i.e., applications under 35 U.S.C. §371) where the oath/declaration was not filed prior to filing the RCE. This post will not address the legal merits of the USPTO's position.

Perhaps what is most perplexing to the patent community is the timing of the enforcement of this interpretation. This unexplainable delay has led to a widespread, and even unappreciated, impact upon granted patents as well as pending applications. Even cute names such as "zombie patents" have crept into patent parlance as patentees and practitioners alike grapple with the scope and impact of this new enforcement. But the reality is that this situation is anything but cute. 

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