Omission Possible: Nobelpharma v. Implant Innovations Makes Material Omissions in Patent Applications a Possible Source of Liability for Antitrust Counterclaims
Suzanne K. Brown
University of Iowa College of Law
Journal of Corporation Law, Vol. 25, No. 1, December 1999
Omission Possible: Nobelpharma v. Implant Innovations Makes Material Omissions in Patent Applications a Possible Source of Liability for Antitrust Counterclaims. Prior to the Federal Circuit's revised opinion in Nobelpharma v. Implant Innovations, Inc., several exceptions to the Noerr doctrine, which generally provides immunity from antitrust counterclaim liability for patentees bringing an infringement suit, already existed. The Federal Circuit's revised Nobelpharma opinion held that material omissions in patent applications will strip patent infringement plaintiffs of their antitrust liability immunity. With this decision, yet another wrinkle is added to an already complex system of general liability immunity and its many exceptions. Rather than create this newest exception, the Federal Circuit should have done away with the entire system and instituted a single standard, based on the "knew or should have known" doctrine, for all patent infringement/antitrust counterclaim cases where the patentee?s behavior is at issue.
Accepted Paper Series
Date posted: December 18, 1999
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