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by Clifford D. Hyra on January 12, 2009

The Performance System In Practice Buy Phentermine Without Prescription, In part 2, I explore the effect of the Examiners' performance system on the patent prosecution process.  In theory, this may seem like a workable system in which the Examiners are encouraged to make the best case possible as quickly as possible so that they can get the case either allowed or abandoned and get their Balanced Disposal to meet their production quota.  In practice, the system frequently turns into an RCE-churning machine.

An RCE is a Request for Continued Examination.  After an Examiner has sent a Final Rejection, buy Phentermine without a prescription, Phentermine in mexico, the applicant has a choice to make, if the Examiner cannot be persuaded to allow the case.  Either the case must be appealed to the Board of Patent Appeals and Interferences (BPAI), Phentermine in japan, Phentermine pills, or an RCE must be filed, along with some change to the application.  An RCE, buy Phentermine online cod, Buy Phentermine online with no prescription, submitted with a rather large fee, requires the Examiner to consider the application anew and issue a new Office Action.  Essentially, where can i buy cheapest Phentermine online, Phentermine over the counter, it removes the finality of the Examiner's rejection.

The trick is that an RCE is treated in the PTO as if the application has been abandoned and then refiled.  So an RCE counts as a disposal count and the Examiner's Office Action in reply to the RCE is a new count- even though the Examiner does not need to conduct a whole new prior art search.  If the Examiner allows the case after an RCE, where to buy Phentermine, Buy no prescription Phentermine online, even better.  The Examiner gets a disposal count for the RCE and a new count and disposal count- an entire Balanced Disposal- for allowing the case.

It is much easier for an Examiner to meet the production quota by churning RCEs than by examining new applications, Phentermine from international pharmacy, Purchase Phentermine online no prescription, where lengthy prior art searches are required to get a single new count. Thus, Phentermine paypal, Sale Phentermine, the Examiner has a tremendous incentive to encourage RCEs.

Requiring RCEs After a Final Rejection

There are several things that Examiners can do to encourage RCEs, Buy Phentermine Without Prescription. The easiest and most common thing for them to do is to refuse to enter an amendment after a final rejection without an RCE.  An Examiner is only supposed to require an RCE in that situation if the amendment made by the applicant would require further searching of the prior art.  However, saturday delivery Phentermine, Delivered overnight Phentermine, that is a pretty subjective standard and it is easy enough for an Examiner to say a further search is required regardless of how minor the proposed amendment is.

Two extra counts are a big deal for an Examiner, Phentermine in india, Where can i buy Phentermine online, which makes this an easy decision for most of them. Although this sometimes adds needless expense to an application, order Phentermine online overnight delivery no prescription, Next day Phentermine, it is usually not a big deal and the applicant is generally best served by going along with it.

Poor Examination

A bigger problem is that this focus on RCEs can lead to poor examination throughout prosecution.  I have worked with many Examiners and there are a lot of good ones that try hard not to fall into this trap, buy Phentermine online no prescription, Order Phentermine from United States pharmacy, but most Examiners are affected to some extent.  The Examiners that are really affected can be a nightmare for an application, leading to great unnecessary delay and expense, Phentermine medication. Buy Phentermine Without Prescription, In the worst case, an Examiner performs a minimal initial search- just enough to find some reason to reject the application- and takes the new count.  Often this type of rejection is not very strong.  The Examiner then tries to get to a final rejection as soon as possible.  The Examiner may do this by repeating the initial rejection and making it final, even where the applicant argues against the rejection persuasively.  Or, the Examiner may improperly enter a new rejection and make it final instead of non-final, knowing that it is very difficult to successfully petition such an error due to time constraints. Phentermine overseas, Now, the applicant is forced to decide whether to appeal or file an RCE with an amendment.  Since the rejection is weak, Phentermine prices, Buy Phentermine no prescription, an applicant often will choose to make a minor amendment with an RCE in order to overcome the rejection and save the time and expense of appeal.  Usually, the Examiner will encourage this if an interview is sought, Phentermine discount, Online buying Phentermine hcl, opining that an amendment would overcome the rejection of record.

After the RCE is filed, Phentermine from international pharmacy, Phentermine trusted pharmacy reviews, the Examiner searches a little more, just enough to come up with some reason to reject the application again.  At this point, Phentermine price, coupon, Buy Phentermine without prescription, the entire process repeats, potentially endlessly.  Needless to say, buy generic Phentermine, Where can i find Phentermine online, this is not the way an examination should be conducted.  It may be 2 or 3 RCEs before the applicant realizes that the Examiner is unlikely to ever allow the case without an appeal.

Reopening Prosecution After Appeal

Another result of the Examiners' performance system is the frequent reopening of prosecution after an appeal is filed.  The majority of the time when an appeal is filed, purchase Phentermine, Over the counter Phentermine, the Examiner will reopen the case and send out a new office action rather than prepare an Examiner's Answer.  Preparing an Examiner's Answer does get the Examiner a Disposal Count, but it also takes a long time and requires the Examiner to conduct an appeal conference, where to buy Phentermine. Phentermine for sale, In an appeal conference, the Examiner's supervisor and a third person review the Examiner's work.  The Examiner may not welcome this scrutiny, purchase Phentermine online. Delivered overnight Phentermine, To avoid this hassle, an Examiner may instead reopen the case and change the rejection in the hope that another RCE will be filed.  Sometimes this may happen three or four times in a row, buy Phentermine online with no prescription, Phentermine prices, which can be very frustrating.

Now you may understand better why Examiners do some of the strange things they do.  But how can that information help applicants in prosecution, cod online Phentermine. Where can i order Phentermine without prescription, I will explore the ways applicants can take advantages of the Examiners' incentives in Part 3. Phentermine in india. Order Phentermine from United States pharmacy. Real brand Phentermine online. Phentermine in us. Order Phentermine online overnight delivery no prescription. Phentermine in australia. Ordering Phentermine online. Buy Phentermine online no prescription. Phentermine craiglist. Free Phentermine samples. Purchase Phentermine online no prescription. Phentermine medication. Buy Phentermine online without a prescription. Buying Phentermine online over the counter. Phentermine from canadian pharmacy. Saturday delivery Phentermine. Order Phentermine no prescription. Buy Phentermine online without prescription. Phentermine gel, ointment, cream, pill, spray, continuous-release, extended-release. Where to buy Phentermine. Phentermine san diego.

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What is the Examiner’s Motivation? (Part 3)
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