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March 21, 2008: Katzer Disclaimed Not One, but Two Patents!

On March 18th, the U.S. Patent Office published two disclaimers, not just one, that Katzer had filed on Feb. 1, 2008. One is the '329 patent mentioned above, and the other is U.S. Patent No. 7,177,733.

We had pointed out that the '733 patent is invalid for "Section 101 double patenting": It has, word-for-word, the exact same claims as an earlier patent, U.S. Patent No. 6,909,945, which issued from '733's parent continuation application. Katzer and his patent attorney, Kevin Russell, had repeatedly filed patent applications that had the exact same claims as in earlier issued Katzer patents. (See the Second Amended Complaint, paragraphs 135 - 221 for details on Katzer's double patenting.)

Katzer and Russell are supposed to tell the examiners if they file copied claims, but they repeatedly didn't. Most of the time, the patent examiners caught this and rejected the claims as improper under Section 101 of the patent law.

Back in 2006, when we filed our original complaint, we identified a number of examples of "prior art", which are examples showing that other people had already created what Katzer claimed he invented. While we were fighting the anti-SLAPP motions, we produced other examples of prior art. Katzer and Russell took those examples, and added several more, and submitted them as part of the application that later issued as the '733 patent. In total, Katzer and Russell submitted between 5,000 and 6,000 pages. Although the examiner who was working on this application had also handled the previous application that issued as the identical '945 patent, she must have been overwhelmed by the thousands of pages of newly produced references, and missed that those claims had improperly been filed again. She allowed the '733 patent to issue.

Our Second Amended Complaint put this situation before the Court as part of demonstrating that Katzer has a pattern of misleading the Patent Office. With pressure on them over the '733 reference, Katzer had Russell disclaim the entire '733 patent, as well as the '329 patent.

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