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Intellectual Property Patent Licensing and Transactions Patent Litigation

Duty of Candor and Good Faith With the USPTO Covers Non-Inventors and Non-Practitioners

Practitioners and non-practitioners that are associated with the examination of patents and patent applications should be vigilant about information that may be material to patentability to avoid having an issued patent be deemed unenforceable.

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The Federal Circuit decision in Belcher Pharm. v. Hospira, Inc., 11 F.4th 1345 (Fed. Cir. 2021), confirms important details regarding the duty of candor and good faith when interacting with the United States Patent & Trademark Office (USPTO). For example, withholding information that is material to the patentability of a pending claim of a patent application during prosecution can cause a resultant patent to be found unenforceable. In view of the Belcher decision, the USPTO released a Notice on July 29, 2022 that provides additional guidance on the duty of candor and good faith. Practitioners and non-practitioners that are associated with the examination of patents and patent applications should be vigilant about information that may be material to patentability to avoid having an issued patent be deemed unenforceable.

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