A Current Application of the Doctrine of Inequitable Conduct by the Federal Circuit and Tips for the Practitioner
By DAVID CONCA
Inequitable conduct remains prominent in many patent disputes. It is a doctrine that is problematic and fraught with uncertainties that occasionally trip up even the most skilled patent practitioners. In this paper, we attempt to provide assistance to the patent practitioner by (1) discussing the current application of the doctrine of inequitable conduct by the Federal Circuit, including the standard of review and a split in the panel decisions by the court that has developed concerning the threshold level of intent required; and (2) providing useful Tips for the Practitioner for consideration during their practice of how to avoid, as best possible, frivolous allegations of inequitable conduct.