Tafas v. Dudas et al

Filing 3

MOTION for Preliminary Injunction by Triantafyllos Tafas. (klau, )

Tafas v. Dudas et al

Doc. 3

Case 1:07-cv-00846-JCC-TRJ

Document 3

Filed 08/22/2007

Page 1 of 3

FILED
UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA
(Alexandria Division)

ZOB1 AUG 22 P U: 02
CLERK US DiSTRiCT COURT

TRIANTAFYLLOS TAFAS,
Plaintiff,
v.

ALEXANDRIA. VIRGINIA

CIVIL ACTION:

\>0i C\l

JON DUDAS, in his official capacity as
Under-Secretary of Commerce for

Intellectual Property and Director of the
United States Patent and Trademark Office, and the UNITED STATES PATENT AND

TRADEMARK OFFICE,
Defendants.

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiff Dr. Triantafyllos Tafas ("Plaintiff or "Dr. Tafas"), through his counsel, Kelley Drye & Warren LLP, respectfully moves for an Order preliminarily enjoining Defendants, the United States Patent and Trademark Office (the "USPTO"), an administrative agency that is part of the United States Department of Commerce, and Jon W. Dudas, in his official capacity as United States
Under-Secretary of Commerce for Intellectual Property and Director of the USPTO (collectively

the "Defendants"), from implementing Sections 1.75 and 1.78 of certain new federal regulations published by the USPTO at 72 Fed. Reg. No. 161 on August 21, 2007 (with an effective date of
November 1, 2007) entitled "Changes to Practice for Continuing Examination Filings, Patent

Applications Containing Patentably Indistinct Claims, and Examination of Claims in Patent
Applications; Final Rule" (to be codified at 37 CFR Part 1 and sometimes collectively referred to

Dockets.Justia.com

Case 1:07-cv-00846-JCC-TRJ

Document 3

Filed 08/22/2007

Page 2 of 3

herein as the "Revised Rules"), on the grounds that Defendants exceeded their Congressionally
delegated authority and unconstitutionally implemented these new regulations As set forth more particularly in Plaintiffs supporting Memorandum of Law and the Declaration of Dr. Tafas, Plaintiff is faced with irreparable injury and Defendants should be preliminarily enjoined from putting the Revised Rules into effect, pending a final decision on the
merits of Plaintiff s claims seeking a declaratory judgment that the Revised Rules are null, void,
and without legal effect because they are inconsistent with the United States Constitution and other federal statutory law including, without limitation, the following: (1) Sections 120,132 and 365 of the Patent Act (35 U.S.C. §§ 120,132 and 365), inasmuch as Defendants exceeded the rule making authority delegated to the Defendants by Congress and the Revised Rules are contrary to the above statutory provisions; (2) the Administrative Procedure Act, Title 5 of the United States Code, particularly in failing to follow the mandates provided for in 5 U.S.C §§
553(c) and 706(2), inter alia, by failing to consider all relevant matter presented during the rule

making process and promulgating rules that are arbitrary, capricious, an abuse of discretion, not in accordance with law and in excess of the USPTO's statutory jurisdiction and authority, and contrary to the U.S. Constitution; and, (3) Article I, Section 8, Cl. 8 of the United States

Constitution, including by failing "to promote the progress of science and useful arts" and the Takings Clause of the Fifth Amendment, which prohibits the federal government from taking
property without due process of law.

Case 1:07-cv-00846-JCC-TRJ

Document 3

Filed 08/22/2007

Page 3 of 3

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court enter an Order in the

proposed form included herewith, enjoining Defendants from implementing the Revised Rules and maintaining the status quo pending a final judgment of this Court on the merits, along with
such, other, further and different relief as the Court deems just, equitable and proper.
Respectfully submitted, Kespect

JoSeph D. Wilson (VSB # 43693)
Kelley Drye & Warren LLP

La

Washington Harbor, 3050 K Street, NW

Suite 400

Washington, DC 20007
Telephone: [phone]

Facsimile: [phone]
E-mail: [e-mail]

Counsel for Plaintiff Triantafyllos Tafas

OfCounsel:
William R. Golden Jr., Esq.
Kelley Drye & Warren LLP

101 Park Avenue New York, New York 10178-0002 Telephone: [phone] Facsimile: [phone] E-mail: wpolden(5),kellevdrve.com
-- and ~

Steve J. Moore, Esq.

James E. Nealon, Esq.
Kelley Drye & Warren LLP

400 Atlantic Street Stamford, Connecticut 06901-3229
Telephone: [phone]

Facsimile: [phone]

E-mail: [e-mail]

Dated: August 22, 2007