Lockwood Reexamination Gripe Goes Nowhere

As discussed last week, the case of Lockwood v. Sheppard, Mullin, Richter & Hampton was recently argued before the CAFC. Wasting no time, today, the CAFC affirmed the lower court ruling without comment. As I explained in last week’s post, this result is not at all surprising given the exchange during oral argument. The decision is correct in my view.

Providing a state law action for suing requesters would inevitably lead to any difference of opinion (as to the strength of a patent reexamination request) being litigated. For example, roughly 25% of ex parte reexaminations are concluded with all claims confirmed, this does not make those requests a “sham.”

A true sham filing is a criminal act, this seems to be lost on most commentators. Harassment of a Patentee with multiple requests of colorable art, is a different story. The Central Reexamination Unit (CRU) has been an adequate gate keeper in policing serial filings (more so recently), and closely scrutinizes the filing of new requests. I just don’t see criminal misrepresentations as a real problem. Likewise, the Lockwood request was not a sham, just an awkward intervening art argument that was not fully developed…a crime?  Hardly.

Surely, unscrupulous members of the public are free to submit anonymous, fraudulent requests, doctor evidence etc. However, to date, such has not been a problem with ex parte patent reexamination. Ex parte patent reexamination has been available since 1981; fraud was not invented yesterday.