Supplemental Examination : CAFC Alert

Saved by Therasense: Deliberate decision to withhold references not found where art was cited in foreign counterpart and domestic co-pending applications

Ryan Chirnomas | October 10, 2012

1st Media v. Electronic Arts et al.

Decided  September 13, 2012

Panel: Rader, Linn and Wallach.  Opinion by Rader.

Summary

This case demonstrates how Therasense has changed the inequitable conduct analysis.  Although the individual inventor and sole practitioner knew of references which were probably material, and did not submit the references, this is now insufficient to demonstrate inequitable conduct.  It must additionally be shown that there was a specific decision to withhold the documents from the USPTO, in order to show an intent to deceive.  This can be demonstrated, for example, by selective disclosure.  However, no such evidence was presented, and thus an intent to deceive, the first part of the inequitable conduct analysis, was not found.


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