Attacking a Patent in Reexamination for Lack of Written Description and Enablement?" by Stephen G. Kunin for a discussion of intervening art and the written description requirement. Reexamination Control 90/008,222
Current Cooperative Arrangement of CRU and OPLA. As previously noted, the CRU is now responsible for the determinations on, and the examinations of, all newly filed requests for XP and IP reexamination proceedings, including monitoring to ensure all actions are timely made, as well as the centralized processing of all reexamination related files and correspondence. While OPLA was thus relieved of its responsibilities for processing reexamination papers, and for monitoring all the reexamination proceedings that were in the TCs, OPLA’s supporting role was not reduced. Rather, it actually has increased in both volume, diversity and complexity. Today, OPLA legal advisors handle most of the complex petitions that are filed, and such petitions are not only increasing in number, they are increasing in complexity as one or both of the parties to reexamination proceedings, especially in IP reexamination, are relying on the petitions process to a greater and greater extent to try to game the reexamination process to their advantage. For example, the unofficial number of petitions handled by OPLA has increased from 280+ in FY 2006, to 300+ in FY 2007, to 465+ in FY 2008, and finally to 570+ in 2009. This is a very large number of petitions and they cannot be just handled in a pro forma manner. OPLA now has to rely on 8 to 10 legal advisors to work on reexamination petitions in order to try to handle all petitions within a 2 month guideline, and in a consistent, thorough manner. Further, efforts are being made in OPLA to handle some petitions, if at all possible, so as to not interfere with, or to minimally interfere with, the reexamination examination process. OPLA continues to train CRU examiners, including both new and existing examiners, and to provide advice and assistance on a regular basis to not only the examiners in the CRU (which have now increased to 55), but also to the SPE’s in the CRU, those examiners handling the remaining reexamination proceedings in the TCs (about 100), as well as to answer questions and queries from an increasingly interested patent bar. As the numbers of XP and IP reexamination proceedings has dramatically increased in recent years, the demands for assistance and advice have correspondingly increased. For example, XP Requests have jumped from about 270/yr during the 3 year period from FY 2000 to FY 2002, to about 650 yr in FY 2009. IP Requests have jumped even more dramatically, going from 126 in FY ’07, to 168 in FY ’08, to 258 in FY’09. Thus, the workload has been significantly increasing, and is expected to continue to increase. Further, the increasing complexity of such reexamination proceedings, especially the IP reexaminations, has made the examination task much more difficult. OPLA is located immediately adjacent to the CRU on the 7th floor of the Madison West office building in the USPTO complex in Alexandria, Virginia, and this arrangement has proven to be very fortuitous and beneficial. Not only are the many OPLA legal advisors close by whenever CRU assistance is needed, but also to jointly work out the many process improvements and initiatives to streamline the process which have been implemented in the past few years.