Patently-O has the text:
There is a good possibility that late on Halloween night, the CAFC will receive an emergency motion for a preliminary injunction or temporary restraining order. How does this work:
Further, within the Patently-O post, Dennis Crouch says:
Although the PTO used Judge Moore and Mark Lemley's article as academic firepower. This rule change is certainly not a "result" of their article.
This is one point in time where the plaintiff would wish for a former district court judge sitting on the bench.
As Bill Clinton might say, it depends on what you mean by "result." Some of these issues were covered in LBE's first comment to the USPTO. Note therein that the USPTO did not even correctly refer to the relevant page in the Lemley/Moore article, which article is "Ending Abuse...", 84 BULR 64 (2004). The comment ended: "The USPTO's reliance on a law review with known, uncorrected, factual errors might be questioned."
Although "Ending Abuse..." might not have been the only reason for the rule change, it was definitely a significant factor. Sadly, "Ending Abuse..." not only contained factual errors but also arguments which were no longer relevant in the year 2004.
Additionally, the comment to which Crouch responded:
how interesting that Judge Moore may have to hear arguments about the new rules that were a result of her article bashing RCEs!
fails to understand that the 2004 Lemley/Moore article barely touched RCEs, for which no data was presented in the 2004 article. When data on RCEs later became available, it became apparent that Lemley and Moore had misunderstood the primary reason people file "continuing" applications.
In passing, LBE tried to post comments on Patently-O but got into a cycle of verification code being repeated. The post finally took:
Of the posts by Crouch, Noonan, etc. concerning the law review article by Professor Lemley and (now) Judge Moore which appeared in volume 84 the Boston University Law Review [BULR; "Ending Abuse of Patent Continuations"], please note
#1. The 2004 law review article in BULR barely touched on RCEs. There is no significant data on RCEs presented in the article.
#2. When data on RCEs later came out, it became apparent that many of the Lemley/Moore conjectures about continuing applications were simply wrong.
#3. There were significant factual errors in the BULR article.
#4. Professor Lemley is not a registered patent attorney. In a later article in the Stanford Law Review on nanotechnology, Professor Lemley credited Gary Boone as being the inventor of the integrated circuit, and did not mention Noyce or Kilby.
#5. In the text in the Federal Register, the USPTO did not even cite the relevant page of the BULR article.
Refer to the April 2006 comment on the proposed rules at