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Step 1: Go to http://portal.uspto.gov/external/portal/pair

Step 2: Enter the captcha

Step 3: Type 11/696,104 as the "Application Number"

Step 4: Click the "Transaction History" tab

To summarize, the PTO issued a non-final rejection of the patent on 02/07/2009. IBM responded to that on 05/11/2009, which yielded a final rejection on 08/31/2009. IBM then requested to withdraw their response to the non-final rejection (the 05/11/2009 response). On 07/01/2010, IBM filed a new response to the 02/10/2009 non-final rejection, and the PTO issued its second final rejection on 09/13/2010.

IBM then made an amendment to their application, and requested a continued examination (read more about that at http://www.uspto.gov/patents/law/aipa/rcefaq.jsp). Then, they filed their appeal to the 09/13/2010 final rejection with the Board of Patent Appeals and Interference. The continued examination yielded the most recent non-final rejection, on 06/24/2011. IBM will likely respond in a few months, and there'll likely be another final rejection (the third) issued.

Now, it's still in the hands of the BPAI, which will likely affirm the rejection. After that, IBM can appeal the Board's ruling to the Court of Appeals for the Federal Circuit, which will most likely side with the PTO.

It seems highly unlikely that IBM will be issued this patent, but if the final rejection is miraculously overturned, prosecution history estoppel will likely preclude IBM from doing anything meaningful with the patent, because as many of you have noted, there's plenty of prior art dated before April 2006.




I believe the appeal is withdrawn when you file an RCE. Great explanation otherwise though.


Yes, you are correct. Filing the RCE after filing a notice of appeal with the BPAI is the same thing as withdrawing your appeal and filing the RCE.[1]

More than likely, we can all look forward to a final rejection by the examiner sometime around October, at which point IBM will likely appeal to the BPAI once more.

[1] 37 CFR 1.114(d).


It appears I have met a fellow patent nerd.




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