Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

The court rejects plaintiff’s arguments that the cited misstatements to the examiner were, due to the availability of other material, immaterial.  Misrepresentations about information can be material even if that information is provided to the examiner.  Nevertheless, the court finds that defendant has not proved intent to deceive by clear and convincing evidence.  The examples of purported inconsistent testimony, and representations made regarding reduction to practice, are insufficient to prove by clear and convincing evidence the intent to deceive, particularly as compared with the egregious conduct described in the case law defendant relied upon.  As for patent misuse, there is no evidence that plaintiff improperly leveraged its patent into post-expiration benefits. Even if it did, the court need not invalidate the patent but may grant relief with respect to any post-expiration benefits which have yet to occur and may not occur.