A finding of inequitable conduct invalidates a patent and has become a charge in almost every patent case filed. Originally, inequitable conduct was found in intentional acts by a patentee or a patentee’s representatives. But now, under repeated review by courts, inequitable conduct is often found in a failure to submit to the United States Patent and Trademark Office (USPTO) every paper related to the prosecution of a patent, even if only tenuously related.
The doctrine of unenforceability due to inequitable conduct traces its roots to a series of early Supreme Court cases. In Keystone Driller Co. v. General Excavator Co ., 290 U.S. 240 (1933), during examination of the patent, the patentee did not disclose to the USPTO a prior use of the invention, and instead, secured an affidavit attesting that the prior use was an abandoned experiment, coaxed others to keep secret the prior use, and suppressed evidence of the prior use. The Court determined that these actions constituted inequitable conduct.
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