Whither Bilateral Patent Prosecution Bars?

Patent practitioners involved in both litigation and prosecution might take comfort in the growing trend away from bilateral patent prosecution bars incorporated into protective orders. Defense attorneys have long contended, especially in cases brought by Non-Practicing Entities (NPEs), that any bar against patent prosecution should apply unilaterally to the NPE's counsel. NPEs generally do not develop products, and are therefore unlikely to maintain confidential information about technology that could be inadvertently used by defendant's counsel during prosecution. Courts are now beginning to accept this argument, and patent litigators should consider fighting attempts to impose bilateral prosecution bars where they might otherwise not have.