![]() Still the plague continued, leading Federal Circuit Judge Gajarsa in 2010 to then refer to it as a “pandemic.” lii The defense was grossly misused, and with inequitable conduct charged in almost every case in litigation, judges came to believe that every inventor and every patent attorney wallowed Pernicious, for they went far beyond punishing improper practice. The result was not simply the elimination of fraudulently obtained patents, when such situations existed. ![]() The law came to demand a perfection that few could attain in the complexities of patent practice. It is a serious charge, and the effect is that an otherwise valid and invariably valuable patent is rendered unenforceable, for the charge arises only as a defense to patent infringement. “‘Inequitable conduct’ in patent practice means misconduct by the patent applicant in dealings with the patent examiner, whereby the applicant or its attorney is found to have engaged in practices intended to deceive or mislead the examiner into Nevertheless, the plague continued, leading a Federal Circuit judge to write: Not of itself justify an inference of an intent to deceive.” l ![]() Gross negligence does not suffice and “does In an effort to stem the spread of this plague, the Federal Circuit sought to restrict its use by holding that inequitable conduct must be established by clear and convincing evidence of deceptive intent. Nevertheless, because the consequences of such a finding essentially kill the patent, defendants assert inequitable conduct whenever possible in a final effort to avoid liability.īy 1988, the Federal Circuit Court of Appeals stated: “the habit of charging inequitable conduct in almost every major patent case has become an absolute plague.” xlix The court then decides whether suchĬonduct had been proven, which is exceedingly rare. Only if the patent is found valid and infringed does the court need to hold a separate hearing to adduce evidence of alleged inequitable conduct. Not infringed at trial, the inequitable conduct issues became moot. This is a commonsense attempt at efficiency because if the patent is found invalid or Most district courts defer ruling on inequitable conduct defenses until after the liability trial addressing infringement, validity, and damages. Many different types of inequitable conduct have been found to render patents unenforceable, from outright fabrications of alleged evidence of unexpected results in theĭevelopment of the invention, to hiding relevant prior art showing prior solutions to the problem solved by the patent, to failing to tell the patent examiner that another patent examiner had rejected a related application. Unable to enforce the patent or recover any damages for its infringement. Patent, was historically called “fraud on the Patent Office,” but more recently has been renamed “inequitable conduct.” A defendant can raise this issue as a defense, which if proven results in the patent being unenforceable-that is, the patentee is Misconduct by the patentee in dealing with the Patent and Trademark Office, through which the patentee or its attorney deceives or misleads the patent examiner in an effort to persuade the examiner to grant the The mostĬommon equitable issues are the defense of inequitable conduct and the affirmative claims of willfulness and exceptional case. Many of these are called “equitable” issues because they are left to the sound, equitable discretion of the court. Issues arise in most patent cases that must be decided by the judge and not the jury. The losing party will file a motion for judgment as a matter of law and usually also a motion for a new trial. Post-trial motions, the winning party will ask for entry of judgment. Equitable proceedings deal with matters to be decided by the judge, not the jury. Grasp the significance of equitable proceedings in the post-trial phase.įollowing the jury’s decision, the court will set a schedule for any equitable proceedings required and for post-trial motions.Figure 2.10 (credit: Jim henderson via Wikimedia Commons / CC0) Learning ObjectivesĪfter completing this section, you will be able to
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