Inequitable Conduct and IDS Practice: Elevating Candor and Integrity in US Patent Examination [CC]

Inequitable Conduct and IDS Practice: Elevating Candor and Integrity in US Patent Examination [CC] — CLE 90 min

Inequitable conduct is unique to U.S. patent law. Applicants typically disclose excessive amounts of art and resist making any characterization of relevance, to avoid allegations of misrepresentation. We question whether this system encourages the best possible examination. Our thought leaders will debate several proposals for statutory amendments that would eliminate the unenforceability defense.

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U.S. patent law contains the unique feature of inequitable conduct as a defense to patent infringement. An entirely valid and otherwise fully enforceable patent claim may be held permanently unenforceable based upon concealing or misrepresenting information to a patent examiner that is entirely inconsequential to whether the patent examiner should have allowed a patent to issue.

Unfortunately, the consequences of the imposition of this type of "prosecution misconduct" defense are largely unintended. Applicants typically resort to disclosing excessive amounts of information, most notably excess numbers of items of prior art, to avoid allegations of concealment. Often, the information disclosed has no bearing whatsoever on any issue of patentability. Patent applicants also resist any effort at making any characterization of the possible relevance of any of the items of prior art being disclosed. Applicants avoid the possibility that any characterization that guides or helps a patent examiner assess the importance of any particular item of prior art might be later attacked during patent litigation as a misrepresentation.

In short, the current application of the prosecution misconduct unenforceability defense is rife with unintended consequences and virtually devoid of intended ones-especially in an "information age" when patent examiners have powerful searching tools at their disposal for identifying relevant prior art, and the patenting process is open to the public and public input. This webinar will discuss two straw proposals designed to elevate the quality of patent examination, as well as make the patent examination process more efficient and effective, while also simplifying U.S. patent litigation.

Panelists

David W Jones, Gordon T Arnold, John M Whealan, Sherry M Knowles

Sponsors

Section of Intellectual Property Law

Product Code

PT2404IDSOLC

Duration

90

Publication Date

4/25/2024 12:00:00 AM

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