Don't Try to Pull a Fast One on the PTO
Every once in a while a patent applicant or patent attorney attempts to get a patent by misleading the Patent and Trademark Office. It may be failing to inform the patent office that the applicant was selling the invention more than 1 year before the filing. It may be making false statements about test results to show that the claimed invention preforms much better than it actually does. No matter what the conduct, if there is an intent to deceive and it is material to patentability, it constitutes inequitable conduct.
Inequitable conduct is a dirty word among patent attorneys. In virtually every patent infringement suit the party being accused of infringement will assert that the patent was obtained by inequitable conduct. If proven true, the patent becomes unenforceable. Thus, many defendants will raise the argument, even when there is little, if any, evidence that there was an intent to deceive or that the allegedly deceptive actions had anything to do with patentability.
The overriding lesson for patent applicants is to fully disclose any information that they are aware of that may relate to patentability. When did you first sell your product? Did your competitor offer a similar product before your invention? Are the actual inventors named - not the owner of the company? Early candor with one's patent attorney can avoid a worthless patent. Even better, it can avoid the large award of attorney's fees which is likely to come after a finding that the patent was obtained by inequitable conduct.
Inequitable conduct is a dirty word among patent attorneys. In virtually every patent infringement suit the party being accused of infringement will assert that the patent was obtained by inequitable conduct. If proven true, the patent becomes unenforceable. Thus, many defendants will raise the argument, even when there is little, if any, evidence that there was an intent to deceive or that the allegedly deceptive actions had anything to do with patentability.
The overriding lesson for patent applicants is to fully disclose any information that they are aware of that may relate to patentability. When did you first sell your product? Did your competitor offer a similar product before your invention? Are the actual inventors named - not the owner of the company? Early candor with one's patent attorney can avoid a worthless patent. Even better, it can avoid the large award of attorney's fees which is likely to come after a finding that the patent was obtained by inequitable conduct.
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