How a "Plague" of Inequitable Conduct Charges Curiously Became a "Scourge" and Why We Should Guard Against the Use of Pejorative Patent Terminology

Infectious disease terminology serves as the reigning metaphor in Federal Circuit cases decrying the rampant assertion of inequitable conduct defenses in patent litigation. The Federal Circuit’s first use of the word plague in this context can be traced back to Burlington Indus., Inc. v. Dayco Corp., 849 F.2d 1418, 1422 (Fed. Cir.1988), when the court stated that “the habit of charging inequitable conduct in almost every major patent case has become an absolute plague.” (Emphasis added.)

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