Schechter and Thomas' Intellectual Property: The Law of Copyrights, Patents and Trademarks (Hornbook Series) by Roger Schechter John Thomas

Author:Roger Schechter,John Thomas
Language: eng
Format: epub
ISBN: 9780314065995
Publisher: West Academic
Published: 2014-04-23T04:00:00+00:00

19.4.1.3 Reconsidering Inequitable Conduct

The doctrine of inequitable conduct has suffered its fair share of criticism over the years. One perceptive commentator has questioned whether the patent system benefits from striking down otherwise valid patents that happen to have been inequitably procured. If, for example, the applicant knowingly withheld a pertinent prior art reference, then the resulting patent is likely invalid due to the requisites of novelty and nonobviousness. But if that patent would stand over the reference, we do well to question whether the applicant has engaged in conduct worthy of condemnation. In such circumstances even the inequitable inventor has obtained a patent that objectively functions as well as any other.46

The Federal Circuit has also described inequitable conduct as “an absolute plague” upon patent litigation.47 In recent years accused infringers seem to bring charges of inequitable conduct in every case. The strategic advantages of doing so are almost too good to resist: Not only does inequitable conduct effectively place the inventor and her patent attorney on trial, it also provides a mechanism for discovery of documents otherwise protected by the attorney-client privilege and work product doctrine. Despite these telling criticisms, the Federal Circuit has 437

remained a vigorous enforcer of the patent applicant’s duty of candor during prosecution.

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