Have Ding V. Singer and Ryan V. Young Rationalized 35 USC 135(b)(2)? ¹

Introduction

35 USC 135(b)(2) is probably the worst written section of Title 35.  It reads as follows:

(2) A claim which is the same as, or for the same or substantially the same subject matter as, a claim of an application published under section 122(b) of this title may be made in an application filed after the application is published only if the claim is made before 1 year after the date on which the application is published.

Now, quick:  which application (the target application or the targeting application) does each appearance of the word “application” refer to?  Does the “application [presumably meaning the targeting application] filed after the application [presumably meaning the target application] is published” have to be the actual application in which the claims are presented or can it be an earlier application to the benefit of the filing date of which those claims are entitled?  Finally, given that original applications are now routinely publishing before they receive their initial examination, does it make any sense for potential defendants to have to go to the trouble and expense of monitoring published applications and, if possible, filing 37 CFR 41.202 suggestions of interference based on the published claims (which, as we all know, are exceedingly unlikely to be allowed as initially filed)?

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