The Inequitable Conduct Defense: What Is Relevant?

The U.S. Court of Appeals for the Federal Circuit lamented 30 years ago that "the habit of charging inequitable conduct in almost every major patent case has become an absolute plague." Burlington Indus. Inc. v. Dayco Corp., 849 F.2d 1418 (Fed. Cir. 1988).

"Reputable lawyers seem to feel compelled to make the charge against other reputable lawyers on the slenderest grounds," the court noted.

Indeed, the incentive for alleged infringers to assert the defense of inequitable conduct in patent cases is significant.

Everyone involved in the filing or prosecution of a patent application has a duty of good faith and candor in dealing with the U.S. Patent and Trademark Office, and must disclose any information known to be material to patentability.