America-Israel Patent Law

Monkey See, Monkey Do - Will Israel Do Something Dumb Just Because the US Supreme Court Did? (Or, Wither DNA Patents In Israel in the Wake of Myriad?)

Lots of verbiage was spent in the run-up to the U.S. Supreme Court’s Myriad Genetics decision last week, lots has already been spent since the decision, and lots more will be spent in the coming weeks.  To call the decision “reasoned” or “logical” is kind of like Vezzini’s use of the word “inconceivable” in the Princess Bride. 

But my intent here isn’t to rant on the SCOTUS, although I may do that in a separate post.  Rather, one of the things that interests me is the potential impact of the Myriad decision on patents in Israel, in two respects.

The first thing I wonder about is its impact on gene patents generally.  Hitherto, Israel has subscribed to the notion that isolated DNA is not a product of nature and is therefore patent-eligible.  One wonders to what extent, if any, the ILPTO or courts here will be influenced by the SCOTUS decision, and if Israel will reverse course with respect to isolated DNA.  

If the patent system here were to change tack, the mechanism by which it would have to do so would need to be slightly different than that enunciated so obfuscatorily by SCOTUS.  That’s because there is no patent-eligibility bar to products of nature per se (except for plants and animals, which are barred from patent eligibility under section 7 on moral grounds).  Rather, section 3 of the Israel statute, which defines patentable (and by extension, patent-eligible) inventions, simply says “An invention, whether a product or process in any technical field, which is new, useful, susceptible of industrial use and inventive – is a patentable invention.”  Israel law thus generally denies patentability to products of nature on lack of novelty grounds.   And asserting that isolated DNA already exists in nature is something I don’t foresee the examining corps at the ILPTO doing – as scientists they’re too sophisticated to be duped by PUBPAT-type hand-waving into buying into that.

On a more immediate, practical level, I wonder about the impact of this decision on already-granted gene patents in Israel that were granted under the section 17(c) procedure, on the basis of a grant of a corresponding patent in the USA.  17(c) is a real work-saver for the ILPTO, since it allows one to piggyback the Israel application on an allowed corresponding application in the USA, the EPO, the JPO, and certain other jurisdictions.  But what happens when that corresponding foreign patent is invalidated – and not on substantive lack of novelty or obviousness grounds, but patent-eligibility grounds?  The statute is silent on that point.  It does include sections 17(d) and 17(e), which place some limits on the use of 17(c), but only in the context of still-pending applications:

17(d):    The Commissioner, as well as the Chief Examiner and his Deputy, are at liberty not to accept the application [for which allowance under 17(c) has been sought], if they determined on the basis of material at their disposal or which was brought to their attention during the course of examination, that the application does not fulfill the requirements detailed in subsection (c) [viz. 17(c)] or if there is another special reason not to accept the application.

17(e): If proceedings for the cancellation of the corresponding foreign patent or opposing the grant of the corresponding foreign patent are ongoing, the applicant shall notify the Commissioner, no later than the date of the grant of the patent in Israel.

These sections are somewhat murky anyway – as I’ve mentioned in earlier posts, what constitutes “special circumstances” in 17(d), and the effect of reporting under 17(e) as well the penalty for non-reporting under 17(e), are unclear – and prima facie they have no effect on issued patents.  17(e), for example, only imposes a requirement to report proceedings against the corresponding foreign patent up until the grant of the Israel patent, not after grant in Israel.  On the other hand, logic dictates that if the corresponding patent on which a 17(c) request was granted was itself invalidated on substantive grounds, at the very least the Israel court or the ILPTO during cancellation proceedings would need to revisit the question of substantive patentability of the Israel patent.

Regarding 17(d), it’s worth mentioning that the ILPTO’s examination guidelines (last updated December 9, 2012) state that if the corresponding foreign application is from a country that has a grace period – e.g. the USA prior to the Asinine Inventorship Assault – then the Israel examiner must look to see if the invention was published during the grace period, since such publication would not have been cited abroad but is citable in Israel; and if such publication took place, the Office applies 17(d) to refuse the 17(c) request and raise a novelty and/or inventive step rejection.  But no word on what might constitute “another special reason” to refuse the 17(c) request.  Would withdrawal from issue by the USPTO following the Myriad decision constitute such a “special reason”? 

As to 17(e), the statute doesn’t say what happens to the Israel application if opposition or cancellation proceedings against the foreign patent are reported, but the examination guidelines instruct examiners to look for such proceedings (even though it is the applicant’s duty to report such) and if such proceedings are found, to move the application from 17(c) examination to regular examination and examine the application for novelty, inventive step etc.    

The Myriad decision effectively means that all claims in US patents to DNA sequences isolated from natural sources are invalid and thus unenforceable.  But in the Israel context, two things should be noted.  First, those US claims were examined and found to be novel and non-obvious.  If one is willing to accept – as Israel law presently does – that isolated DNA, as opposed to cellular DNA, is not found in nature, then under Israel law that isolated DNA needs to be examined for novelty (did someone else isolate it first?) and inventive step, which in the case of 17(c)-allowed Israel patents already occurred abroad.  So the effective invalidation of the US patent upon which an isolated DNA claim in Israel was allowed should not impugn the 17(c) allowance retroactively. 

Second, it should be stressed that the US claims are effectively invalidated, but not formally invalidated.  As a formal matter, by statute those US claims are still presumed valid until challenged.  Following Myriad, we won’t be seeing attempts to enforce those claims, because that would open the door to such challenges being made by defendants, and such challenges are now trivial to make; but technically every one of those claims is valid until a court points to a specific claim and says it’s not valid because it’s directed to patent-ineligible subject matter.  In which case there’s even less basis for asserting the claims in Israel should be shot down because of the Myriad decision, since at present there are no isolated DNA claims granted under 17(c) in Israel whose corresponding US claims have been invalidated per Myriad.  

Do I Smell A Lemon (Coke)? A Twist on Parallel Importation

Coca-Cola has been sold in Israel for a long time; while its main competitor was still complying with the Arab boycott, Coke was not only marketing its product here, but even set up a bottling plant (via a local bottler) in Bnei Brak, today home to many meticulously religiously observant Jews.  Needless to say that Coke products sold in Israel are under rabbinical supervision to ensure that they are kosher.  And that Coke has many trademarks registered in Israel.

Fast forward to 2013.  Coke, like any successful business enterprise, wants to expand its markets.  So it should come as no surprise that Coke has a bottling operation in Bitounia in the PA (via an authorized partner*).  It should also not come as a surprise that some of the PA-produced Coke product makes its way into Israel. 

I don’t know how long Coke has been produced in the PA, and I don’t know how long some of that Coke has been finding its way onto the shelves of Israeli stores.  What is clear is that the PA-produced product costs less to consumers than the brown gold made in Israel, the price of which is tightly controlled by the bottler.  This makes the PA stuff attractive to Israelis who can get their hands on it – and at least an annoyance to the local bottler, although probably not a threat.  

The bad news for the Israeli bottler is that it doesn’t really have legal recourse against the PA-produced Coke.  That’s because it’s been long established in Israel that trademark law provides no relief against parallel importation of genuine goods.  In the particular case that set that precedent, the local authorized importer of Parker pens, who had an exclusive contract with Parker, sued a third party who purchased Parker pens elsewhere, imported them into Israel and sold them.  The court held that since the pens in question were genuine Parker pens, there was no infringement of Parker’s mark.  In the present situation, the PA drink is genuine Coke, authorized by HQ in Atlanta and legitimately bearing the Coca-Cola mark.

So what do you do when you want to protect monopoly rents but IP law isn’t on your side?  You could try to tell the public that the imported Coke is inferior, like the Israeli importer of Huggies did two years ago when someone started importing Huggies from Turkey and selling them for less.  But people can easily decide for themselves about the quality of the PA Coke, and you’d probably annoy the Mother Ship if you started bad-mouthing one of her other colonization teams.  

Personally, I suspect that if I were the bottler, my reaction would be to go to the Coca-Cola Company and ask it to tell the PA bottler to put a cap on his production, or to tell him that he’s not authorized to sell outside the PA, since I’m assuming that the larger mark-up on Coke in Israel means greater profits for the Coca-Cola Company. But since I'm not privy to the details, and there may be other variables at play in CCC’s calculus, I don’t know if that approach would work.

What other options are open?  Here’s where things take an Israeli twist.  The PA Coke is not under rabbinical supervision.   So recently the Chief Rabbinate (a state institution) issued a statement warning people against buying the PA-produced Coke because it lacked such supervision (see English-language article here).  It refrained from explicitly saying that the Coke wasn’t kosher – after all, the same concentrate is used in Coke around the world, sugar is sugar is water is water, so chances are the PA Coke is kosher – but noted the importance of educating kashrut-observing people to only buy rabbincally-supervised products.

I’ve no idea if the Chief Rabbinate discovered this “problem” on its own or if it was informed of the matter by someone else, like the Israeli bottler or one of the outfits that certifies the kashrut of the Coke from Bnei Brak.  But since Bitounia is close to Jerusalem, it seems to me that some enterprising kashrut agency could come to the rescue and explain to the PA bottler the benefits of kosher certification.  And then maybe the Israeli bottler would have to drop its prices.  Or not.  It's hard to believe that the PA bottler has access to a distribution system in Israel as good as the Israeli bottler's; one suspects the competition would be limited to the Jerusalem area. 

*From http://www.coca-colacompany.com/contact-us/coca-cola-rumors-facts (statement undated): “For example, in the Palestinian Authority, The National Beverage Company, our Company's authorized local bottling partner, is an independent, privately held company, managed by local Palestinian businesspeople, who operate a Coca-Cola bottling facility located in Ramallah and distribution centers in Gaza, Hebron and Nablus. The National Beverage Company employs 200 local people and generates employment for hundreds of others in related industries.”  Also look here.

Gotta Love Those Multilateral Treaties

So a news item last week in the patent world was that Saudi Arabia has now joined the Patent Cooperation Treaty (or in the formal language of the PCT, it has now become a PCT contracting state).  Amazingly, the ILPTO saw fit to send out its own email announcement about this and to post an item about this on its website.  I say “amazingly” because we all know that there will probably be a Jewish Pope before the Saudis allow national phase entry of an Israeli applicant’s PCT application, so it’s hard to fathom why the ILPTO is excited about the Saudi PCT accession.  Don’t believe me?  Check out this news story about the kingdom’s blocking access to The Jerusalem Post’s website.  Bottom line: Israeli entities that need to file in Saudi Arabia or other countries that are hostile to Israel (but are willing to adopt Israeli technology) will continue to need to play the part of Clark Kent for their patent application filings.

Working Hard so the ILPTO Doesn't Have To

Coming up next week we have Memorial Day on Sunday night and Monday, followed immediately by Independence Day on Monday night and Tuesday.  

Unlike Memorial Day in the USA, which has become just another excuse for a sale at the local auto dealer or appliance store, Memorial day in Israel is a significant event for most Israelis.  The percentage of families having someone who's fallen in the line of duty is much higher than in the USA, and everyone either knows a fallen soldier, a victim of terrorists, or a close relative (parent/ sibling/ child/ spouse) of such a person.  There are memorial sirens at night and during the day when the country literally comes to a standstill, and ceremonies throughout the country commemorating the deceased.  And with the threat from Israel's neighbors being both existential and quite tangible, the average Israeli understands better than the average American that vigilance is part of the price of freedom.   

Although Memorial Day is not an official state work holiday (unlike Independence Day), with so many people having been affected by the Arab world's perverse obsession with killing Jews, many offices run on a reduced staff basis on Memorial Day, as many employees are out attending memorial ceremonies.

Which is presumbably what lead to this week's announcement from the ILPTO that it will be closed to the public on Memorial day, but that "it will be possible to file documents at the Patent Office until 17:00".  Translation: if you have a deadline on Monday at the ILPTO, you'll have to file by Monday, even though the PTO will effectively be closed.  Got a Memorial Day ceremony to attend yourself?  Too bad you're not a public sector employee like us guys at the ILPTO.  

Suggestion to the Commissioner: next year, either officially declare your offices closed on Memorial Day and extend all deadlines until the day after Independence Day (i.e. until Wednesday), or leave your offices open to the public even though you'll be short-staffed.  It will make a much better impression than the half-baked solution offered this time around.

Sleep On That: Even When Trying to Help Hapless Pro Se Mattress Inventors, ILPTO Awards Excessive Fees to Well-Funded Opponent

Mr. and Mrs. Gabbai live in Ashdod. They developed a three-layer mattress, which they asserted helps prevent sudden infant death syndrome (SIDS). In 2007 they filed a US patent application on their mattress, which eventually issued as US 8065767. The corresponding Israel case, application no. 179840, didn’t fare as well: although allowed by the Examiner, the application was rejected by the Deputy Commissioner in pre-grant opposition proceedings instituted by Aminach, a well-established local mattress manufacturer. There are several aspects of the decision worth noting: first, the basis on which the application was (and was not) ultimately rejected; and second, the award of attorneys’ fees given to Aminach.

Aminach asserted that the patent shouldn’t be granted because (a) the Gabbais breached their duty of disclosure (by failing to provide the ILPTO with the publications cited by the USPTO examiner), (b) the claims were unclear, (c) the invention was neither novel nor inventive, and (d) the invention lacked utility.

Despite acting pro se (and, unsurprisingly, making numerous mistakes along the way as a result, e.g. attending the hearing at the ILPTO without being prepared to cross-examine one of Aminach’s witnesses), and despite the fact that Aminach was represented by one of the largest IP firms in Israel, the Gabbais managed to successfully parry most of these assertions. With respect to the non-disclosure of the references from the USPTO, the Deputy Commissioner noted that deliberate concealment is one of the requirements for sanctioning an applicant for non-disclosure, and she ruled that since Aminach hadn’t provided any evidence to show that the non-disclosure was deliberate, she had to find for the Gabbais on this point. Likewise, she found that the invention was novel and inventive over the prior art cited by Aminach.

What the Deputy Commissioner found lacking was utility. The Gabbais had asserted in their application that the mattress reduced the incidence of SIDS. Aminach’s expert witness, a physician, pointed out that there was no evidence in the application or even provided by the Gabbais later that showed that the mattress in fact achieved this result. Since the Gabbais were deemed not to have submitted their own evidence (because their evidence was filed as a letter rather than an affidavit), and their cross-examination of Aminach’s expert wasn’t terribly successful, the Deputy Commissioner ruled that that invention lacked utility and was therefore unpatentable.

The difficulty with that determination is, of course, that no one disputes that the mattress actually worked as a mattress. That alone is sufficient to qualify for utility under section 3 of the statute: “An invention, whether a product or process, in any technological field, which is new, useful, susceptible of industrial use and inventive, is a patentable invention.” Whether or not the mattress worked to reduce SIDS is (or should have been) immaterial. By stressing in their patent application that the mattress reduced in the incidence of SIDS, the Gabbais opened themselves to obfuscation of this point by Aminach’s attorneys. Had the application merely described what the invention is – viz., a mattress having a particular construction – without singing its praises, it is doubtful that the Deputy Commissioner would have been duped into agreeing that the invention lacked utility.

(Having determined that the invention lacked utility, the Deputy Commissioner didn’t rule on the clarity of the claims.)

No less remarkable was the awarding of 40,000 shekels (over US $10,000) in attorneys’ fees to Aminach. Aminach actually asked for over 140,000 shekels in fees, but refused to provide its attorneys’ billing sheets on the grounds that these were privileged. The Deputy Commissioner ruled that the billing sheets were not privileged documents, and that their non-production left the Gabbais without an opportunity to challenge the billings; nevertheless, she awarded 40,000 shekels on the basis of “the evidence and pleadings filed by the opponent, the fact that the applicants didn’t file their own evidence, and the great savings incurred by the fact that the summations were presented orally rather than in writing [as is the norm in Israeli legal proceedings – DJF]”.

Perhaps the Deputy Commissioner felt that she was doing the applicants a favor by awarding significantly lower fees than the prevailing party requested, but it’s still a slap in the face: you file a patent application on an invention which is novel and inventive, you nevertheless lose in an opposition, and then you have to pay the other side? It should also be borne in mind that just a few years ago, an award of 40,000 shekels was unthinkable – an award of just 5,000 shekels would have been considered sizeable. The request for 140,000, and the granting of 40,000, are clearly the result of the ILPTO’s trend to grant attorneys’ fees award far in excess of what real courts of law themselves actually award.

If anything, the fee award in this case will discourage inventors with little money from seeking to commercialize their inventions or otherwise disclose them in patent applications – why bother to do so if a better-funded competitor hire some good lawyers to sell the ILPTO a load of baloney not only to prevent you from getting a patent you deserve, but to also convince the ILPTO to tell you have to pay for your competitor’s lawyers?

(For those of you who read Hebrew, the transcript of the hearing before the Deputy Commissioner, as well as the letter the Gabbais sent to her the day after the hearing, both of which can be viewed on the ILPTO’s web site, make good reading if you’re looking to illustrate why acting pro se is usually a bad idea.)

A Small Favor for Israel Patent Applicants

This morning the Israel PTO sent out an update regarding applicants' reporting of prior art to the ILPTO.  Similar to the USA, Israel imposes a duty of disclosure throughout the application process.  Henceforth, when listing publications cited against the novelty or inventive step of corresponding applications elsewhere, applicants will only need to provide the ILPTO with copies of non-patent literature; the ILPTO will apparently obtain patent publications for itself.  Don't know who was behind this change, but I think I speak for the entire community of Israel patent applicants and practitioners when I say thanks for injecting a small but welcome measure of sanity into local practice.

Yes, We Use Organic Solvents!

This post has nothing to do with patents, but the photo below of yours truly in front of a dry cleaning establishment (courtesy of Scott Daniels of Westerman, Hattori, Daniels and Adrian and Scott's i-phone) was taken last fall when I was in DC for the AIPLA annual meeting: 

Scott and I both found this sign pretty funny.  If you don't get the humor, you can find hints here and here.

Frosty the Snowman, Or the Grinch? ILPTO Gives Employees A Snow Day, But Not Applicants

It snowed yesterday and today in Jerusalem.  That’s not an unheard of occurrence, but it is infrequent.  And the amounts of snow dropped on the country’s capital weren’t just a light dusting, either – we’re talking upwards of 20 cm.  The 2 PM news is reporting that traffic remains snarled as a result of the snow.

Unsurprisingly, many government employees have been unable to get to work, with the result being that many government offices are closed.  Thus, for example, yesterday the court system put out this announcement that all hearings scheduled for the Jerusalem Magistrates, District and Labor courts were canceled, and that the courts themselves would only open at 11 AM, and that they would operate on an emergency basis (although the Supreme Court would continue to operate as usual).  Yesterday’s announcement stated that another announcement would be made concerning court operations today, although the Supreme Court’s website contains no further announcement.  The effect of the court closures is to defer deadlines for filings due yesterday or today.

Under similar conditions a few years ago in the USA – the so-called “snowmaggedon” – much of DC shut down, including the USPTO. 

In contrast, today the Israel PTO put out its own announcement (via its email distribution list, there’s no corresponding announcement on the ILPTO web site): the office is “open for the filing of papers only”.  How considerate: there’s still no mechanism for the electronic filing of papers in patent or design cases at the ILPTO, and ILPTO employees have been excused from working today on account of the snow, but if you have a filing deadline for a patent or design matter, tough: you have to physically get your papers to the ILPTO. 

Apparently just announcing that the office is closed and all filing deadlines are pushed off until Sunday so that people can build Frosty the Snowman is too much to ask of the ILPTO Grinch Commissioner. 

Insomniacs Rejoice, Part 2 (or, Puzzle This: Why Didn’t The Amended Regulations Set A Fee For Third Party Requests For Expedited Examination?)

For those weirdos who find the Israel patent regulations to be a scintillating topic for discussion (and for those who are just gluttons for punishment), here are a two more points not mentioned in yesterday’s post.

First, in addition to raising filing fees, many other fees are also going up significantly, effective January 1, 2013.  Examples: extension fees will rise from 64 shekels per month to 200 shekels per month; the first renewal fee for a patent (through the end of the 6th year) will go from 157 to 800 shekels, and the second renewal fee (for years 7-10) will rise from 320 to 1600 shekels.   (Admittedly, that doesn’t come close, in absolute or percentage terms, to raising the re-examination fee from $2500 to $17,000, as the USA recently did.)  There will also be a new excess page fee of 250 shekels for each group of 50 claims, or portion thereof, beyond the first 100 pages of the application; sequence listings won’t count, but no word on whether the Israel filing form or the PCT Request (for national phase filings) are included in the page count.

Second, what is most glaring is what wasn’t included in the new regulations: a fee for making a third party request for expedited examination (TPREE).  As reported in a previous post here and in a guest post on PatentDocs, statutory amendments enacted earlier this year will allow third parties to request that someone else’s application be moved to the front of the examination queue (and stay there); that provision comes into effect in mid-January 2013. Such requests must be accompanied by a fee, “if such a fee is established”.  One would have thought that such a fee would have been included in the latest set of amendments to the Regulations, alongside all the other new and amended fees, but there’s no mention of a fee for TPREE.   The Justice Ministry, which proposes the fees, is on record as supporting a TPREE fee of 25,000 shekels; one surmises that the non-inclusion of this fee in the latest group of fees means that the local generic drug lobby – the same group that lobbied for TPREEs in the first place – wants the fee to be set lower (a conclusion confirmed by a source involved in the discussions regarding these fees).

Prediction: there won’t be a TPREE fee in place come January 13, at which time there will be a flood of TPREE requests, all directed to patent applications in the pharma field.  At which point the proverbial excrement will hit the proverbial fan, with Pfizer et al. demanding hearings on the propriety of expediting examination in each case, and the Commissioner have conniptions trying to figure what he needs to do.  In the spring, after Knesset elections, TPREE fees will be set in the amount of at least 25,000 shekels per request.   And a good time will be had by all, or at least by the lawyers who represent the major players in pharma in Israel.

Insomniacs Rejoice! The Revised Israel Patent Regulations Are Here! (Or, How to Create A Useless Small Entity Status) (Or, The ILPTO’s Opaque Transparency)

On November 25, amendments to the Patent Regulations were published; earlier this week the ILPTO published a notice regarding the new amendments.  Both documents make good reading, if counting sheep isn’t working for you; unfortunately for those of us who practice before the ILPTO, they are both required reading. (Yes, there was a spike in sales of amphetamines this week in Israel.) Primarily these amendments revised the Regulations to conform with recent statutory amendments concerning online publication of various notices. Nevertheless, hidden within these soporific missives are a few points of interest:

First, the filing fee for new patent applications has been nearly doubled, from 1075 shekels to 2000 shekels.  This wasn’t unexpected.  In a populist response to the previous Patent Commissioner’s collecting publication fees for notices that were never published on paper (but were published online, in an understandable but nevertheless ultra vires move), earlier this year the outgoing chairman of the Knesset’s Constitution, Statute and Law committee forced the words “publication fee” out of the statute.  But the money has to come from somewhere, so now the filing fee has been raised significantly.  Ironically, the same committee that did away with "publication fees" was the one that approved the new fee increase.  Go figure.

Second, the fee increase was accompanied by the establishment of a small entity status, of sorts: individuals, or partnerships or companies having an annual turnover of up to 10 million shekels (roughly $2.5 million at current exchange rates) can get a 40% discount on the filing fee and the issue fee – a whole 800 shekels, or about $200 for the former, and 280 shekels, or about $70, for the latter – for “filing for a particular invention a first patent application”.  What exactly constitutes a first patent application for a particular invention is anyone’s guess: if it’s disclosed but not claimed and I claim it in later filed divisional, am I entitled to the discount? What if in the first application I claimed a compound and in a later application I claimed a use of that compound (and does it matter if that use was disclosed in the first application or not)?  What if I recast my original claim in a slightly different form using different terms, but in a way that effectively claims the same thing?  Was anyone who knows anything about patent prosecution involved with the drafting of this new regulation? Beam me up, Scotty.

What is clear is that the savings involved simply aren’t worth arguing about, should the ILPTO assert that you’re not entitled to the discount, since the attorney time alone will eat up the savings.

That drawback is heightened in view of the ILPTO’s statement that in order to qualify for the discount, the applicant will have to submit a sworn statement attesting to entitlement to the small entity status. Just preparing the statement for each case and getting it executed will involve professional time that eats into any potential savings.

Moreover, the imposition of such a requirement, aside from being over-the-top – it should be sufficient for the practitioner of record to assert in an unsworn statement that the applicant is entitled to small entity status, as is the case in the USA – and possibly ultra vires (I don’t think the ILPTO has the authority to require that level of proof of small entity status), also constitutes a stunning contrast to the Office’s supposed policy of transparency. Various Commissioner’s notices and circulars are now distributed in draft versions and the public invited to comment on them before they are finalized. That’s a new policy under the current Commissioner (in office since May 2011) which was put in place in the name of “transparency”. Here, there was no public discussion regarding the appropriate policy for ensuring truthful small entity status claims; the requirement for a sworn statement was put in place by ILPTO fiat.

Which, in truth, isn’t all that different from the way the Commissioner’s circulars and notices work. Because even when comments are solicited beforehand, those comments aren’t made public, the ILPTO doesn’t publicly relate to them, and rarely do the draft versions differ appreciably, if at all, from the final versions. Basically, the distribution of the drafts appears to be a fig leaf meant to provide the appearance of transparency without actually achieving transparency.

Finally, if you’re still awake, you probably need prescription narcotics.

(Actually, there’s one more point pertaining to what’s not in the new regulations, but that will wait for tomorrow’s post.)