The defense of unenforceability due to inequitable conduct in patent infringement suits has become an absolute plague. Senior Judge Nichols of the Federal Circuit said as much ten years ago, and the problem still remains. Because of the expense of litigating such a defense, patent owners settle valid infringement claims for cents on the dollar, while infringers suffer little more than the slight risk of sanctions. This Note defines inequitable conduct in patent prosecution, details the consequences of inequitable conduct, and describes the restricted method available for curing inequitable conduct. Next, the author describes the problems with the current state of the law. Finally, the author suggests a solution in two parts, namely raising the stakes for contesting inequitable conduct issues in the courts and making post-issue cure of inequitable conduct available.
Glenn E. Von Tersch,
Curing the Inequitable Conduct Plague in Patent Litigation,
20 Hastings Comm. & Ent.L.J. 421
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol20/iss2/4