""It is essential for the entire industry to get involved and urge the Federal Circuit to rehear this critically important issue en banc. " A Federal Circuit panel recently reached a final decision that, if not overturned, will destroy the U.S. patent system, and will ironically impact the most valuable patents disproportionately. The ruling was simple and continues a disturbing and inexplicable trend-a patent issued after more than six years in prosecution is presumed unenforceable as the result of prosecution laches."
"The enormity of the problem cannot be understated. The Biden Administration left a historic backlog of patent applications, with almost 840,000 unexamined patent applications pending as of January 2025, and an overall total of 1.2 million pending patent applications. Although the Trump Administration has been able to cut the number of unexamined patent applications to approximately 800,000, the backlog remains historically large. And with no appreciable change in the incoming filing rate and few new examiners hired, we can expect this historic patent backlog to continue to fester."
"This backlog coupled with the Federal Circuits growing use of prosecution laches creates a perfect storm that will be catastrophic for any applicant or industry that relies on filing continuations-or even RCEs-to obtain the full, fair and justified scope of protection for innovations."
A Federal Circuit panel presumed patents issued after more than six years of prosecution unenforceable under the doctrine of prosecution laches. A historic USPTO backlog existed with almost 840,000 unexamined applications as of January 2025 and about 1.2 million total pending applications, and limited new examiner hiring with steady filing rates threatens continued delay. The growing application of prosecution laches combined with persistent backlog endangers continuations and RCE strategies used to secure full patent scope. Gilbert Hyatt intends to seek en banc review on whether prosecution laches can bar issuance of patents that meet Patent Act criteria, citing Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014).
Read at IPWatchdog.com | Patents & Intellectual Property Law
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