Monday, April 04, 2005

Another installment in the Housey litigations

The Federal Circuit took up the appeal of an inequitable conduct finding in Bayer v. Housey, 2003 US Dist Lexis 22411 and sent the case back to the district court in a nonprecedential decision. A nominal victory for Housey.

Of some interest, the CAFC observed that because Dr. Housey kept things from his colleagues did not allow an inference about bad acts. "Secretive acts have sound basis in patent law." Maybe Jan-Hendrik Schon could try that approach.

The CAFC also found Dr. Housey did not knowingly withhold certain references because these references were cited in the specification (although probably not on a 1449 or 892 form).

Although the CAFC noted it was correct to apply the pre-1992 standard of materiality (what a reasonable examiner would consider important), the CAFC considered what Dr. Housey thought was material, not what a reasonable examiner would have thought.

The classic case of Egbert v. Lippmann, 104 US 333 (1881), is cited, as is the inequitable conduct case of Molins, 48 F3d 1172 (CAFC 1995).


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