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25 Years of CAFC Inequitable Conduct Jurisprudence
Inequitable conduct allegations seem to appear in almost every patent infringement case litigated in the last few years. Trial courts and practitioners should take note of recent Court of Appeals for the Federal Circuit ('CAFC') cases that shed light on the importance of particular fact patterns that may influence determinations of inequitable conduct. Almost 25 years ago, the CAFC began its inequitable conduct jurisprudence by holding that patents are generally unenforceable if procured amidst inequitable conduct in the seminal case of Kingsdown Med. Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 872 (Fed. Cir. 1988) (portions en banc). This jurisprudence held that a defendant must show: 1) material act(s) by the plaintiff, and 2) the plaintiff's intent to deceive the PTO to prove an inequitable conduct defense. Upon a showing of inequitable conduct, the court may hold the claims of the patent unenforceable. By balancing the levels of materiality and intent, with a greater showing of one factor allowing a lesser showing of the other, the court will determine whether the inequitable conduct exists. Specifically, four recent CAFC decisions: McKesson Info. Solutions, Inc. v. Bridge Med., Inc., 487 F.3d 897 (Fed. Cir. 2007); eSpeed, Inc. v. BrokerTec, USA, L.L.C., 480 F.3d 1129 (Fed. Cir. 2007); Cargill Inc. v. Canbra Foods, Ltd., 476 F.3d 1359 (Fed. Cir. 2007); and Dippin' Dots, Inc. v. Dots of Fun, Int'l, 476 F.3d 1337 (Fed. Cir. 2007), shed light on the CAFC's current inequitable conduct jurisprudence and provide insight into how certain conduct may be interpreted by the court today.
Material Acts
Prior to 1992, the CAFC used a rule fashioned after PTO Rule 56, defining the duty of the applicant to disclose information material to patentability and describing an applicant's duty of candor, as the standard to determine if acts were material. Under the 'reasonable examiner' rule, a court was required to determine 'whether there is a substantial likelihood that a reasonable examiner would have considered the omitted or false information important in deciding whether to allow the application to issue as a patent.' Atlas Powder Co. v. E. I. Du Pont de Nemours & Co., 750 F.2d 1569, 1578 (Fed. Cir. 1984).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?