Cancelled -- Rule 41.200(b)ass=”size-full wp-image-2162 alignleft” title=”cancelled” src=”” alt=”Cancelled — Rule 41.200(b)” width=”172″ height=”129″ /> The USPTO has announced that 37 C.F.R. 41.200(b) is no longer viable in light of the  Federal Circuit’s Agilent Technologies, Inc. v. Affymetrix[1] decision, and has thus cancelled the rule.  As discussed in earlier posts commenting on the Agilent and Koninklijke Philips Electronics N.V. v. Cardiac Science Operating Company[2] decisions, the Federal Circuit has concluded that, when a party challenges the patentability of a “copied” claim pursuant to 35 U.S.C. §112, first paragraph, the “copied” claim should be interpreted in light of the specification of the targeted patent or application.  In contrast, Rule 41.200(b) required that a claim in interference be given its broadest reasonable construction in light of the specification in which it appears. With Rule 41.200(b) taken out of its misery, one has to wonder what guidance examiners will be given when examining claims “copied” to provoke an interference.  Will examiners be instructed to apply one claim construction when considering written description and another claim construction when applying prior art to the same “copied” claims?  Will the MPEP be updated?  If nothing else, the PTO’s decision to cancel Rule 41.200(b) in response to Agilent reinforces the prevailing opinion that interference practice is arcane. 

[1] 567 F.3d 1366 (Fed. Cir. 2009). [2] 590 F3d 1326 (Fed. Cir. 2010).