by Dennis Crouch

Director John Squires has issued another precedential decision, this time focusing on obviousness-type double patenting (ODP). In Ex parte Baurin, Appeal No. 2024-002920 (ARP Aug. 6, 2026), an Appeals Review Panel led by Director Squires (joined by Chief Administrative Patent Judge Deshpande and Acting Deputy Chief Judge Ankenbrand) reversed the Board and reinstated six ODP rejections of Sanofi antibody claims. The panel held that the risk of divided ownership and duplicative infringement suits, the "anti-harassment" rationale, independently supports an ODP rejection even though the rejected claims would expire five years before the reference patent.

The remarkable part is that the panel does not appear to believe in the rule it applies. They found the decision required by Federal Circuit precedent, but then explained in some detail why the standalone anti-harassment rationale should be abandoned or sharply limited, telling the Federal Circuit that the Office "would welcome" clarification.  The basic question: when - if ever - is a double patenting rejection proper in a pending application that will expire before the already-issued reference patent?

The CAFC has its opportunity to clarify. The same question is pending in In re Ablynx N.V., No. 26-1333 (Fed. Cir.), the appeal from Ex parte Baumeister, 2025 WL 3515282 (PTAB Nov. 20, 2025). The USPTO has not yet filed its brief in that appeal; after two extensions it is due August 14, 2026, with no further extensions anticipated. In these direct appeals the Office is represented by its own Solicitor's office rather than by the Department of Justice, so Director Squires controls the filing. I expect that Baurin reads as a preview of the USPTO's upcoming arguments.