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Scott E. Kamholz, M.D., Ph.D.
Scott E. Kamholz, M.D., Ph.D.: Patent Attorney specializing in medical devices and Patent Reexamination Proceedings
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It seems likely that this new RCE handling procedure is going to result in another patent term adjustment bonanza. Although the clock on 3-year delay stops with the filing of an RCE, PTA will still accumulate under 35 USC 154(b)(1)(A)(ii), which requires the PTO to respond to Applicant's reply under 35 USC 132 within 4 months. An amendment in response to a final rejection that accompanies an RCE would be considered a reply under 35 USC 132, so a 4-month clock will start ticking. Cases often sit on the "special new" docket for years, so there is an enormous opportunity for PTA. It's an even bigger opportunity than when filing a continuation, where the PTO at least gets 14 months from the filing date to issue a first action. A solution might be to docket RCE's as soon as they are filed and then require Examiners to act on RCE amendments within 4 months.
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