Patent Fraud

53 Pages Posted: 29 Apr 2010 Last revised: 7 Dec 2014

See all articles by David O. Taylor

David O. Taylor

Southern Methodist University - Dedman School of Law

Date Written: April 1, 2010

Abstract

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 over-used by alleged infringers in patent litigation to the detriment of the public. This over-use creates problems. First, it encourages over-disclosure of information to the Patent Office. In extreme cases, over-disclosure 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, over-use 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.

Keywords: inequitable conduct, fraud, patents

Suggested Citation

Taylor, David O., Patent Fraud (April 1, 2010). Temple Law Review, Vol. 83, p. 49, 2010 . Available at SSRN: https://ssrn.com/abstract=1596452

David O. Taylor (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

HOME PAGE: http://www.law.smu.edu/Faculty/Full-Time-Faculty/Taylor.aspx

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