cstr

Letter to Prof. Kieff,

After reading Hazeltine Research, Inc v. Brenner, I think the main rationale behind the Supreme Court is the concern about the speed of the PTO to examine a patent application. Since I feel that the policy reason is a main part of the court opinion, it comes to me that maybe it is still possible not to count 102(e) prior arts as a prior art in 103. My argument is that if the 102(e) prior art was issued or published just a short time (e.g., one day or one week) after the application was filed, that 102(e) prior art should not be counted. This is because even if the speed of the PTO is concerned, it is impossible for the PTO to thoroughly review a patent application within one day or one week. So it would be unfair to the inventor if his application was rejected based on such 102(e) prior art in the 103 rejection.

Although I know this argument is hardly successful, I will still argue for that if a 102(e) prior published shortly after my client's application was filed.