In Immersion Corp. v. HTC Corp., the Federal Circuit upheld the USPTO's longstanding interpretation that 35 USC § 120 permits filing a continuation as late as the issue date of the parent.
The decision observed although 35 USC § 120 literally requires a continuation be filed "before patenting" (the issue date), the USPTO has interpreted this language for at least 50 years as only requiring a continuation be filed no later than the issue date.
This decision is estimated to save the validity of up to 13,500 U.S. patents. But given the USPTO's electronic filing system (EFS) is not always available and the Supreme Court could revisit this issue and see things differently, it does not seem entirely safe to rely on this decision.
Copyright © 2016 Robert Moll. All rights reserved.
