Patents > Patent Litigation

file wrapper estoppel of PCT application handled by other than USPTO?

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UVAgal4:
(Didn't there used to be a PCT section of this forum?)

Anyway, I am wondering whether a US application/patent that originated as a PCT application and was in the preliminary examination phase before another office (EPO, JPO, etc) than the USPTO, whether the response to the other office is considered part of the file wrapper of the US application.
Does it matter whether the US application was filed as a national application or continuation?
Thanks a lot.

NJ Patent1:
UVAgal:  What exactly are we typing about here?  A PCT with non-US ISA that also issues(ed) the IPER, or actual national/regional examination before, e.g., the EPO?
   Article 19 amendments, explanatory comments thereto, etc. have to be filed with the USPTO in the national stage and go into the US national stage file wrapper, and an Examiner could refer to / rely on them.  (Any Examiner out there care to comment?)  As your litigation adversary, I’ll scrutinize them in any US litigation on a US patent issuing from that PCT and do my best to cram them down your throat.  Why does anybody respond to IPERs, binding on no one, unless they know they have attempted an “overreach” and gotten caught with hand in cookie jar?  In which case you get what you IMO deserve.  Cheers over those broad claims come now, the tears come later.
   On the other hand, statements made to, e.g., the EPO in prosecution of a regional application based on a PCT are not part of the FH of a US application based on the same PCT.  BUT, in litigation, they are “relevant” to (but not dispositive of) claim construction, and I’m aware of at least one CAFC case in which a finding of inequitable conduct was upheld bcs applicant blatantly talked out of both sides of their mouth (statements to EPO were diametrically opposed to statements in a 132 filed in USPTO in a related app, filing the 132 was ic).
   IMO the best approach is to assume that the saying “anything you say can and will be used against you in a court of law” goes DOUBLE in patent law.  They (and I!) are out to get you. 

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