Inequitable Conduct Pitfalls - Special Considerations for Reexaminations and Complex Family Prosecutions

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Patent prosecutors, beware: The latest decision from the Federal Circuit on the materiality prong of inequitable conduct, Larson v. Aluminart,[1] makes it clear that office actions from related, copending applications can be material to prosecution. This is true even where the fact of the copendency has been disclosed and the office actions discuss only cumulative art. But patent prosecutors, take heart: Notifying the examiner of related prosecution and disclosing earlier documents from that related prosecution evinces good faith, not deceptive intent. And litigators, pay attention: Reexaminations completed during a litigation can present inequitable conduct issues or defenses.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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