I've just about had it with U.S. restriction practice

Today, I got another restriction requirement in a US National Stage application.  We entered the national stage under 371, and the Examiner applied the correct Unity of Invention rules and everything.  

So why am I pissed off?

Because all the claims of this application HAD ALREADY BEEN SEARCHED IN THE INTERNATIONAL STAGE.  The only amendments I made upon entry in the USPTO were to remove multiple dependency.  Otherwise, the claims of the US application are identical to those of the PCT.

The application has, effectively, ALREADY BEEN EXAMINED.  Why is this Examiner creating more work for himself?  It MAKES NO SENSE.  He's costing my client money that they shouldn't have to spend.  He's dragging out the prosecution process.  FOR NO REASON.

Sure, maybe he gets the case off his desk quickly by issuing a restriction.  Except NOT, because he had to go through the work to draft the restriction requirement (and election of species - did I mention that there's an election of species requirement)?  It would have been faster just to pump out an action on the merits based on the IPER.  He's got the art.  He's got the form paragraphs.  A reasonably bright fifth-grader could write that office action.

Who asked for this?  Who thought this was a good idea?  It's not like Examiners are sitting around with nothing to do.  Last I checked, it still takes more than the target 14 months for the USPTO to pick up a case.

I checked the MPEP, and do you know what it tells Examiners to do in this situation, in US national stage applications where no unity of invention objection has been raised in the international phase?

NOTHING.

It doesn't say that the U.S. Examiner may substitute her judgment for that of the international examiner.   It doesn't say that she shouldn't.  It doesn't provide ANY GUIDANCE AT ALL about how to deal with what, in my experience, is VERY common situation.

Yeah, it generates fees, by forcing applicants to file multiple applications.  But no, that's circular, because the extra fees go to pay examiners to examine all of those extra applications.  If they didn't have so many extra applications to examine, they WOULDN'T NEED ALL THE EXTRA FEES.

ugh.

Is it time to start drinking yet?

Patent Rights in South America? Not so much.

The U.S. Trade Representative just released a report listing countries that have shaky IP regimes.  The list includes, among others: 

Argentina
Chile
Venezuela
Bolivia
Brazil
Colombia
Ecuador
Peru

Let's compare that to a map of South America:
 
Wow.

Maybe more interesting, under the circumstances: the South American countries that didn't make the list:

Guayana
Suriname
French Guiana
Paraguay
Uruguay.

Would not have predicted that.  Anyone making a lot of patent filings in French Guiana?

BTW, also on the list of problem countries for IP:

Canada.

Go figure.  

Federal Circuit: Giles Who?

The Federal Circuit in Nichia v. Everlight has just (arguably) made it even harder to obtain a permanent injunction in a patent case.

 What is the patent right again?  Oh yeah - this:-

"It is no longer debatable what the patent right is. As I just explained, the Supreme Court told the country in 1852 in Bloomer v. McQuewan that it consists altogether in the right to exclude others – and that is all it is. It is not an ambiguous “exclusive right”; it is a simple right to exclude others. Period."

An Interview with Judge Giles S. Rich, 9 FED. CIR. B.J. 75 (1999). (Hat tip to Prof. Crouch)