Appeal No. 96-3189
Application 08/396,079
that an applicant can file; in Hogan, the court ruled that the
PTO should accord the same treatment to a
continuation as it does to an original application; in
Petrochemical, intervening rights of the parties were involved
in an interference proceeding; and Aukerman and Advanced both
dealt with infringement suits where laches were discussed as
they related to the initiation of the suits after prolonged
delay following the acts of infringements. In Lemelson, the
PTO had required a seven-way restriction in the original
application. Overall, though, the courts have shown a
reluctance to equitably limit the patent continuation
practice.
The courts gave deference to 35 U.S.C. § 120, which does not
per se limit the number of continuations an applicant can file
to obtain the claims that are permissible under the patent
laws. For example, the court in Lemelson, 42 USPQ2d at 1711,
even noted that the parties admitted that the commercial
gamesmanship employed by Lemelson in this case did not run
afoul of current statutes or regulations.
We do not challenge the authority of our reviewing court
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