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September 18, 2012

Double Standard

37 CFR 1.56 requires a "duty to disclose information material to patentability," but the CAFC won't uphold it. "[T]his court has now made clear that "[t]o prevail on a claim of inequitable conduct, the accused infringer must prove that the patentee acted with the specific intent to deceive the PTO." Therasense, 649 F.3d at 1290. Moreover, '[a] finding that the misrepresentation or omission amounts to gross negligence or negligence under a 'should have known' standard does not satisfy this intent requirement.'" 1st Media v. Electronic Arts (CAFC 2010-1435). Accountability is certainly not what the CAFC is about.

Posted by Patent Hawk at September 18, 2012 4:39 PM | Inequitable Conduct