According to the Eastern District of Virginia, an award of attorney fees may be appropriate where a defendant in an infringement suit continues to pursue an inequitable-conduct defense despite weak or futile evidence. A patentee’s failure to disclose a prior-art reference related to the prosecution of the asserted patent’s foreign counterpart failed to meet either the materiality or intent requirements to demonstrate inequitable conduct where the examiner explicitly stated that further foreign references would not affect the issuance of the patent. Faced with such facts, persisting with an inequitable-conduct claim justified an award of attorney fees. Such consequences in this case may further discourage the general use of the inequitable-conduct defense in other patent-infringement cases.
December 13, 2011
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