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October 30, 2008


Judge Posner recently issued an opinion in New Media v. Barco (ND Ill), in which he rendered two patents unenforceable because the inventor lied in a declaration. Posner eschewed the notion that the court should engage in the meticulous process of trying to divine the effect of the lie on the prosecution. Posner is clear that when you lie, you lose your patent. Moreover, he suggests that the applicant in that case, a patent agent, should be disciplined by the PTO for his lie.

That's one plaintiff who probably wishes that he'd settled his dispute.

The Abbott opinion also demonstrates that the CAFC has lost its way on PI jurisprudence. Judges Newman and Gajarsa both offer excessively mechanical tests that seems to miss the point of having equitable remedies. I'd like to see SCOTUS grant cert to this case.

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