Those of you following your docket through the PTO’s PAIR system may note that the Office has begun its ‘identification process’ of unexamined patents with either (1) more than 25 claims issued or (2) more than 5 independent claims. The docket report shows:

• Entry: Flagged for 5/25
• Status: “Request for SIR -- Recorded” or “Preexam Flag for 1.75(b) Issues”

According to a telephone conversation with the Office of the Commissioner for Patents, these cases have been pulled from Examiner dockets because they exceed the 5/25 limit and are thus-far unexamined.  We will be able to do a retrospective in Mid-November to estimate the number of cases impacted by this pre-rule activity.  Of course, this appears to be a de facto implementation of the new rules prior to the stated November 1 effective date.

• For an example, look at the PAIR data for App. No. 20060294241.
• Thanks to James McEwen and Randall Svihla alerting me to this issue. 
• This alert will help many practitioners ensure that they have found all their cases that exceed the new limits. Many attorneys keep no specific records of the number of claims filed. For published cases, Derwent keeps track of the number of claims.
• UPDATE 10/17/07 — App. No. 20060294241 referenced above is no longer ‘flagged.’