I took over 2 cases that were filed by another attorney in November 2006 - both cases pending. The two cases are related inventions, and were filed on the same date in 2006.
Lets call them "case A" and "case B". Case A is currently under appeal to the BPAI - filed the reply brief about 3 months ago so probably some time until it gets reviewed.
Case B I received a first office action on November 5th of this year. In the office action, the examiner rejected all claims (properly) under 101 for statutory type double patenting. First time I've ever received one of those, and quite surprised. The Examiner said the claims for case B were the same as the published claims for case A. When I looked at the as-filed applications that was clearly not the case - the claimed inventions were very distinct and different.
However, when I looked at the filed claims for case B, they were identical to the published claims for case A!!!! Furthermore, the filed claims for case A are identical to the published claims for case B. It appears the office of data management mixed up the two applications when they were published!
I sent a note to the office of data management requesting how to get the publication corrected. They referred me to the procedure that states the publication must be corrected (for PTO error) within 2 months of the date of publication. The only problem is the date of publication was in 2007 - long ago.
Does anyone have any idea on how to fix this? The Examiner referred me to the ODM to get it corrected, and their procedure doesn't provide a remedy here. Guessing there may possibly be no remedy if the publication can't be corrected at this point...