Several recent judicial opinions suggest that patent law’s inequitable conduct doctrine is broken. These opinions indicate that—despite its admirable objective of encouraging disclosure of important information to the Patent Office—the inequitable conduct defense is being overused by alleged infringers in patent litigation to the detriment of the public. This overuse creates problems. First, it encourages overdisclosure of information to the Patent Office. In extreme cases, overdisclosure makes it difficult for patent examiners to identify information critical to deciding whether to issue patents, potentially resulting in the issuance of invalid patents. Second, overuse of the inequitable conduct defense unnecessarily increases costs associated with enforcement of patents. Costs to inventors, to the court system, and ultimately to the public itself all increase dramatically with each allegation of inequitable conduct. These problems with the inequitable conduct doctrine threaten the very purpose articulated in the patent clause in the Constitution—the promotion of the progress of science and useful arts. This Article analyzes the inequitable conduct doctrine and proposes a reform that would alleviate its present problems. “Patent fraud” should replace the current doctrine of inequitable conduct.
Volume 83, No. 1, Fall 2010