In two recent cases the U.S. Court of Appeals for the Federal Circuit attributed to Congress an intent that flies in the face of decades of law and, in one, leaves patent owners without recourse against lawyers who deliberately harm them through fraud. At a time when intellectual property represents a growing portion of our country’s wealth, the two cases are worth the attention of the legal community and Congress.
The first case, TheraSense v. Becton Dickinson, 99 U.S.P.Q.2d(2011), is well known because it dramatically lowered how honest a patent lawyer must be with the U.S. Patent and Trademark Office (PTO). In less than 30 years, the Federal Circuit transformed an affirmative duty of good faith and candor to disclose all information that a patent examiner would find important to patentability into a “duty” — if it can be called that — not to intentionally and deceitfully obtain a patent to which the lawyer knows his client is not entitled.
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