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June 03, 2009


Criminal penalties for inequitable conduct? If that ever comes to pass, members of the patent bar should start providing the government with REAL causes for sending them to jail. Like shooting annoying economists.

Proponents of inequitable conduct presume that it will result in patents of better quality. Unfortunately, they do not substantiate these claims with any data. Instead, they use emotional inflammatory language (i.e., liars and cheats).

Under this assumption, patents procured in jurisdictions that do not impose a duty of candor and good faith as they do in the US should be of poorer quality than those obtained in the US.

From a purely anecdotal basis, I might argue that patents obtained in jurisdictions without the duty of candor and good faith are better than those in the US.

Dear Saddlepack:

Hard to compare different systems. Also, I suppose Mr. Brill's analysis was motivated by similarly anecdotal reports of poor patent quality, which translated to rampant inequitable conduct. Easy to see how he went wrong, but you'd expect an economist to do the analysis to show the problem he was trying to solve actually exists.

We are saddled with the IC doctrine, I think, but we don't have to apply it improperly or let the IC tail wag the patent prosecution dog. Unfortunately, too many times reformers focus on the imperfections of a system (which they inevitably have) and cause more problems trying to solve them than existed before their "reforms."

Thanks for the comment.

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