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Letter to the Editor of Intellectual Property Today regarding 102(e) effect of bypass applications, submitted 8/16/2004

Editor, Intellectual Property Today

Dear Intellectual Property Today Editor:

I enjoyed reading the article by Gero Mclelland entitled "National Entry into the United States from an International Application" at 11 Intellectual Property Today No. 8 at pp. 24-26. However, the conclusion on page 24 that "[p]rior to recent statutory changes, it was believed that [when] filing a bypass continuation application under 35 U.S.C. 111(a) ... [the application] received a 102(e) date as of the international (PCT) filing date ..." is not strictly correct, and, at least no in the eyes of the USPTO and the CAFC, a bypass continuation did not obtain the 102(e) date of the international PCT application. In fact, the USPTO abandoned that position, as reported in Henry, "The USPTO Reverses Policy on 'Bypass Continuation' Application", Intellectual Property Today, Vol. 7, No. 5, 2000.

Respectfully submitted,

Rick Neifeld, Ph.D. Patent Attorney
President, Neifeld IP Law, PC
Tel: 703-415-0012
Fax: 703-415-0013
URL: www.Neifeld.com

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