Commerce Secretary "Entirely Wrong" on Inequitable Conduct Reform

    By Donald Zuhn --

Last week, we reported on a letter sent by Secretary of Commerce Carlos Gutierrez to Senators Patrick Leahy and Arlen Specter, in which the Secretary reaffirmed the Bush Administration's support for the Applicant Quality Submission (AQS) provision of the Senate patent reform bill (S. 1145).  In addition, Secretary Gutierrez linked the AQS provision with inequitable conduct reform, stating that the Administration "strongly opposes any statutory changes to the doctrine of inequitable conduct in the absence of a strong provision requiring Applicant Quality Submissions."  According to Secretary Gutierrez, if Congress were to tackle inequitable conduct without also implementing AQSs, this "would merely invite fraud on the patent system."

The Intellectual Property Owners Association (IPO), which we have noted has been encouraging its members to contact their Senators and voice their opposition to the AQS provision, has released a statement concerning Secretary Gutierrez' comments on inequitable conduct.  In particular, the IPO has called the Secretary's comments on inequitable conduct "entirely wrong."  According to the IPO:

Inequitable conduct reform seeks to eliminate frivolous charges of fraud.  AQSs without inequitable conduct reform would create a fertile new ground for frivolous charges of fraud, but inequitable conduct reform without AQSs would not invite “fraud on the patent system.”  The benefits of inequitable conduct reform do not depend on AQSs.

The IPO reasserted its strong opposition to the AQS provision and its strong support for inequitable conduct reform.

Comments

[ruralcounsel]

If the applicants are really the best source of knowledge in interpreting prior art, and the AQS is going to be new fodder for the inequitable conduct mill, perhaps we should just go all the way and allow applicants to decide patentability and allowance questions, and do away with the USPTO entirely. Patent proecution will really occur in courts under the guise of inequitable conduct allegations ... now, do we have enough federal district court judges to replace all the examiners?