Recalibrating Our Empirical Understanding of Inequitable Conduct
3 IP Theory 98
18 Pages Posted: 22 May 2013
Date Written: May 16, 2013
This Essay examines the rate at which inequitable conduct is pled. Despite routinely being the subject of empirical claims, there is surprisingly little data to draw upon. This Essay examines the only prior study to address pleading rates for inequitable conduct and builds on that study’s approach to provide a clearer picture of the pleading rate for inequitable conduct.
The results reveal that while pleadings involving inequitable conduct did experience a modest increase from 2000 to 2008, the prior assertion of a "strong upward trend" of 4% to 40% in the rate at which inequitable conduct was plead is implausible, as is the Federal Circuit’s assertion of an 80% pleading rate in Therasense. More significantly, to the extent one accepts that meaningful patterns can be established by a few years’ worth of data, as courts, the patent office, and commentators seem willing to do, since 2008 allegations of inequitable conduct have fallen precipitously, at least to the extent they can be measured by Answers and Counterclaims. In 2008, 41% of patent cases in which Answers were filed contained the term “inequitable conduct” in an Answer; by 2012 that rate had fallen to 21%. Federal Circuit determinations of inequitable conduct remain rare, of course; one would expect nothing else - particularly in light of Exergen and Therasense.
Keywords: patent, empirical, inequitable conduct
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