Another sign that patent reform is heating up again: the ABA’s IP Section has sent the Senate Judiciary Committee a position paper regarding inequitable conduct reform (click here to get to the Section’s advocacy page which has a link to the letter). The ABA argues that inequitable conduct materiality should be based upon the law and standards at the time of the alleged conduct, not based upon the present day standards. The ABA also argues that inequitable conduct decisions should continue to be made by the federal courts, not the PTO. And finally, the ABA argues that the standard for inequitable conduct should be:
(1) that a person having a duty of candor and good faith to the PTO in connection with the patent or an application therefor knowingly and willfully misrepresented a material fact or material information to the PTO or omitted a known material fact or known material information from the PTO;
(2) that, in the absence of such misrepresentation or omission, the PTO, acting reasonably, would not have granted or maintained in force at least one invalid patent claim; and
(3) that the misrepresentation or omission occurred with a specific intent to deceive the PTO, and that such intent cannot be established by the mere materiality of the misrepresentation or omission.