Whither Patent “Evergreening”, the Spangenberg Critique
Erich Spangenberg has authored an attack on the current Administration and its Under Secretary in charge of the patent system [FNa]. His focus is on patent “evergreening” and what he says the Administration has done relative thereto[FNb].
Earlier Statutory Changes to Mitigate “Evergreening”: The Administration in its first Term successfully introduced legislation to make it easier to challenge patents. This builds upon the success a generation ago that changed the system so that the term of a patent (“evergreened” or not) was capped at twenty years from the filing date any priority patent application.
The Administration in its first Term successfully saw passage of the Leahy Smith America Invents Act of 2011. Now, an “evergreened” patent that does not provide a substantial (patentable) difference versus an earlier patent can be weeded out through a vibrant “double patenting” doctrine by use of enhanced procedures for citation of prior art during prosecution as well as a new Patent Trial and Appeal Board available to enforce “double patenting” rejections.
What does the Office have to Say about the Spangenberg Critique: Any analysis of the conduct of the current Administration will be deferred to permit it to refute Spangenberg.
[FNa] Erich Spangenberg, What is Michelle Lee Hiding, IP Watchdog (February 29, 2016), available at http://www.ipwatchdog.com/
2016/02/29/what-is-michelle- lee-hiding/id=66590/?utm_ source=Website+Subscribers+% 28RSS%29&utm_campaign= 1c9be06b38-Daily_RSS_Feed_ With_Calendar&utm_medium= email&utm_term=0_98774de295- 1c9be06b38-58598997
[FNb] “Evergreening” is the pejorative term for a patent applicant gaining a second patent with a later expiration date to essentially the same invention as the first patent.