Unenforceability Due To Client Failure To Correct Counsel's Misrepresentations To PTO

In the ongoing saga between two manufacturers of liners for prosthetic limbs, the US Court of Appeals for the Federal Circuit confirmed a finding of inequitable conduct committed by the patent owner while the patent at issue was being reviewed in an ex parte reexamination. The Ohio Willow Wood Company v. Alps South, LLC, Case Nos. 15-1132; -1133 (Fed. Cir., Feb. 19, 2016) (Bryson, J). This confirmation comes less than a year after the Federal Circuit vacated a patent owner verdict of willful infringement for a lack of standing ( IP Update, Vol. 18, No. 7).

Ohio Willow Wood (Willow) filed a lawsuit against Alps South (Alps) alleging infringement of its patent. Alps mounted a validity challenge in two successive ex parte reexamination proceedings while the district court remained stayed. In the first reexam, Willow managed to avoid the asserted prior art by amending its claims, limiting them to cover a prosthetic