antitrust : CAFC Alert

Hiding prior art from the Patent Office: from inequitable conduct to antitrust violation

| February 18, 2016

TransWeb, LLC v. 3M Innovative Properties Co.  (Precedential)

February 10, 2016

Before Wallach, Bryson and Hughes.  Opinion by Hughes.


A 3M inventor and the in-house prosecuting attorney concealed a prior public use by TransWeb which rendered the 3M invention unpatentable. A sample of the TransWeb prior art was given to the Patent Office Examiner with the pretense that it had been communicated under a confidentiality agreement. Given 3M’s capacity to monopolize the market, this fraud constituted, not just inequitable conduct, but also antitrust violation. Under the antitrust statute, 3M is liable, not only for treble damages ($103,000), but also treble attorney fees ($23 million).

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