Abstract

This Article's main finding is that the inequitable conduct doctrine has the ability to improve patent quality as long as the inherent tendency to overcomply with the doctrine by overloading the USPTO with information is kept in check. The Article reaches this conclusion by proceeding in five parts. Part II describes the current thinking on the inequitable conduct doctrine, with particular focus on the major critiques of the doctrine and proposed legislative and administrative responses. Part III of the Article begins the construction of a fundamental, conceptual framework for the doctrine by explaining how it impacts both patent quality and patent examination. If properly calibrated, the doctrine can improve both the quality of the patent application (by increasing the patent attorney's knowledge and care) and the quality of the examination (by acting as an information producer and verifier). The doctrine's potential impact is not all positive. The tremendous incentive for applicants to overcomply can actually decrease patent quality. Part IV completes the conceptual framework by detailing how the doctrine, through the extreme legal and extra-legal costs it currently imposes, incentivizes inventors and, in particular, patent attorneys to overcomply by submitting all information, regardless of relevance, to the USPTO. Part V explains how this overcompliance negatively affects patent examination and the patent system by causing information overload that hampers the USPTO's ability to operate effectively and by creating high compliance costs that price inventors out of the patent system. Finally, in Part VI, the Article uses this framework to suggest changes that maintain the positive effects of the doctrine on patent quality while minimizing overcompliance.

Document Type

Article

Publication Date

2009

Download

Share

COinS