The order by the Federal Circuit granting the petition to rehear Tafas v. Doll en banc has set the following schedule for the case:
- Appellants may file additional briefs by August 5.
- Appellees may file additional briefs within 20 days of service of the Appellants’ briefs.
- Appellants may file reply briefs within 7 days of service of Appellees’ briefs.
Thus, briefing should be done by early to mid-September. Amicus briefs are to be filed pursuant to Federal Circuit rules.
The court has set argument for the case on Wednesday, October 7.
What does this mean? Given that the panel decision, now vacated, had three separate opinions and three separate rationales for the decision, it is really difficult to predict what the court will do with the case. It is possible that the court will follow Judge Bryson’s instructions for permitting the PTO’s continuation rules to remain in effect. Hopefully, the judges with experience in patent matters will understand the implications of the new rules better than Judge Prost’s opinion did. The new PTO Director should be confirmed by the time argument takes place in this case. It is still not clear what effect this will have on the PTO’s prosecution of the case.