Conventional continuation practice almost completely eviscerates the public policy underpinnings of Maxwell v. J. Baker, Inc. 86 F.3d 1098 (Fed. Cir. 1996) (see yesterday's post). Why? The patent applicant could simply file a continuation with a new set of claims which directly read upon his competitor's product, and then immediately sue for infringement of the continuation.
There is one significant limitation to this strategy: to file a continuation (or any type of continuing application for that matter), there must be at least one patent application with the same specification that is still pending at the USPTO which the continuation can validly claim the benefit of via a priority claim.
There is one significant limitation to this strategy: to file a continuation (or any type of continuing application for that matter), there must be at least one patent application with the same specification that is still pending at the USPTO which the continuation can validly claim the benefit of via a priority claim.
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