It is important that a stable situation be reached where Rule 56 and the Federal Circuit are on the same page, and that this situation be reached as soon as possible. If there is an immediate move by the Patent Office to reconcile Rule 56 with Therasense, this should provide such stability.
If on the other hand the Patent Office moves quickly to stabilize the situation and is supportive of Therasense then the likelihood that review will be granted would be sharply dimiished and the patent community can embrace Therasense as a truly final decision and move on with a smoother and more efficient patent procurement regime.
Rarely does the leader of the Patent Office have a chance to make a monumental decision, a change of course in how the patent system operates. Since the late 1970’s when the Dann Administration made the fatal mistake of creating a "fraud squad" and the inequitable conduct was made an in terrorem tool to compel voluntary citation of prior art the Patent Office has been stuck in a Rule 56 rut of incomprehensible rules and regulations that today swamps the Patent Office with reams of unusable prior art.