It’s been called the atomic bomb of patent law—inequitable conduct. It happens when a patent is applied for, but the duty of candor, disclosure and good faith toward the U.S. Patent and Trademark Office (USPTO) is violated. If proven to have occurred during patent procurement, then the entire resulting patent becomes unenforceable. Even if inequitable conduct affects a very limited aspect of a patent application, the consequences are catastrophic as the ability to assert the resulting patent vanishes.
Inequitable conduct took center stage last month in Regeneron Pharmaceuticals v. Merus N.V., 2016-1346 (Fed. Cir. 2017). While the opinion provides a stark reminder of the ethical duties required of practitioners during the patent application process, the basis of the decision is controversial.
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