More than a year has passed since the C.A.F.C. handed down its Exergen decision, holding that inequitable conduct is akin to conventional fraud and, therefore, must be pled in considerable detail. Apparently, not everyone has gotten the message. (ACQIS LLC v. Appro International, Inc. et al.)

As the reader may (read: “should”) know, Patent Office rules impose a duty of candor and good faith upon “all individuals associated with” the filing and prosecution of a patent application.

A patent which is procured through “inequitable conduct” is unenforceable. Periodically, the C.A.F.C. states that the defense of inequitable conduct is over-utilized and, therefore, it is looked upon – by the C.A.F.C. – with “disfavor.” Of course, these pronouncements do not prevent the trial courts from finding inequitable conduct, nor the C.A.F.C. from affirming these findings. Most claims of inequitable conduct arise out of allegations that the patentee has withheld prior art from the patent examiner.

Large corporations are constantly railing against the alleged unethical conduct of NPEs (Non-practicing Entities, also pejoratively known as “trolls” and “those X!#?Z”) which have the temerity to sue when their patents are being infringed.