In a recent Notice of Proposed Rulemaking (NPRM), the United States Patent and Trademark Office (USPTO) introduced a conditional enforceability restriction on patents having a terminal disclaimer (TD) filed to obviate the judicially-created obviousness-type double patenting (ODP) rejection. Under the proposed rule, an Applicant would need to assert that the patent subjected to the TD would remain enforceable only if it is not (or has never been) tied with any other patent where any claim of that patent has been finally adjudged unpatentable or invalid over prior art.

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