Patent Prosecution Across the AIA Divide: Warning to Patent Practitioners – Special Care is Needed to Avoid Legal Malpractice
Therefore, returning to my hypothetical inquiry above, assume a continuation is filed on or after March 13, 2013, but is accomplished in such a manner so that its does not qualify to be treated as a patent application under current law. This means, as a consequence, that if, for example, the parent application when originally filed relied upon the one year grace period or if someone else files a patent application describing the subject matter of the invention before the filing of the parent application (but otherwise was not the “first to invent”), the claims of the continuation will be rendered unpatentable. Furthermore, since it would have been possible to file the continuation in a manner so that current law continued to apply even after March 13, 2013, one might imagine that a patent prosecutor in this situation may be subject to liability and/or perhaps a bar complaint. If I now have your attention, continue reading, because this situation can take place much more easily than I certainly would have imagined.