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Category Archives: Inequitable Conduct

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The Dire Consequences of Misleading Patent Examiners and the Court During Patent Prosecution and Litigation

Posted in Expert Witness, Inequitable Conduct, Inventor Witness, Patent Litigation

As the summer winds down, vacations recede in the rear-view mirrors, and the “school” year begins, two recent cases offer a refresher course in the dire consequences awaiting  inventors who misrepresent prior art during patent examination proceedings, and for patent litigators who misreport the nature of potential witness testimony in federal district court trials.  The… Continue Reading

Playing Fast and Loose With Corroborating Evidence: Patent Advocacy Inequitable Conduct

Posted in Inequitable Conduct, Patent Litigation, Patent Prosecution, Rules of Professional Responsibility

Patent litigation often involves the assertion of prior art anticipation and obviousness defenses.   U.S. patents are presumed valid, so a defendant seeking to overcome this presumption must persuade the fact-finder of a patent’s invalidity with clear and convincing evidence.  Corroborative evidence of invalidity—e.g., contemporaneous documents, physical specimens and witness testimony—is generally necessary to satisfy this… Continue Reading

The Patent Legal Malpractice Implications of “Walker Process” Antitrust Claims

Posted in Conflicts of Interest, Inequitable Conduct, Insurance Claims, Legal Malpractice, Patent Litigation, Patent Prosecution, Proximate Causation, Rules of Professional Responsibility

As experienced trial lawyers know, successfully trying or defending a case is all about presenting a compelling, understandable theme and narrative that comports with a judge and jury’s common sense and experience. Juries especially are prone to favor litigants and lawyers they like and case theories they easily understand.  That is human nature on display… Continue Reading

The Jurisdictional Power of the “Case-Within-A-Case” Doctrine in Patent Legal Malpractice Litigation

Posted in Inequitable Conduct, Patent Litigation, Proximate Causation

  The Federal Circuit’s recent precedential decision, Warrior Sports, Inc. v. Dickenson Wright, P.L.L.C. (issued on January 11, 2011), demonstrates (once again) the sheer power and ability of the “case-within-in-case” doctrine to jurisdictionally transform a state law malpractice claim into a case arising under federal patent law. In an unusual twist, the Warrior Sports plaintiff… Continue Reading

How a “Plague” of Inequitable Conduct Charges Curiously Became a “Scourge” and Why We Should Guard Against the Use of Pejorative Patent Terminology

Posted in Inequitable Conduct

  Infectious disease terminology serves as the reigning metaphor in Federal Circuit cases decrying the rampant assertion of inequitable conduct defenses in patent litigation. The Federal Circuit’s first use of the word plague in this context can be traced back to Burlington Indus., Inc. v. Dayco Corp., 849 F.2d 1418, 1422 (Fed. Cir.1988), when the court… Continue Reading