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Federal Circuit Re-Settles Law of Inequitable Conduct


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: May 25, 2011 @ 3:49 pm
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The United States Court of Appeals for the Federal Circuit earlier today issued its much anticipated opinion in Therasense, Inc. v. Becton, Dickinson and Co. Upon first glance I had a strong suspicion I would agree with the decision of the Court when I noticed the opinion was authored by Chief Judge Rader, who was joined by Judges Newman, Lourie, Linn, Moore and Reyna, with Judge O’Malley joining in part. While Judges Reyna and O’Malley have been on the Court only a brief time, I almost always agree with Judge Rader, I seem to always agree with Judge Newman, and Judges Lourie, Linn and Moore typically seem spot on, at least in my opinion. I was not disappointed, and if you are engaged in representing clients before the USPTO neither will you be disappointed.

Judge Rader wrote: “Left unfettered, the inequitable conduct doctrine has plagued not only the courts but also the entire patent system.” Chief Judge Rader would go on to say that materiality is a “but-for” test, and actually breathed real life into the intent requirement, saying: “Proving that the applicant knew of a reference, should have known of its materiality, and decided not to submit it to the PTO does not prove specific intent to deceive.” The Federal Circuit did decline to adopt the USPTO version of the duty of candor outlined in Rule 56, which I have advocated for, instead opting for an even better, more patentee friendly standard than I have advocated for over the years.  Today is a good day no doubt.  Intent now actually requires intent, and a reference must actually be material in order to satisfy the materiality requirement. What a radical concept!

This dispute first started on its way to the Federal Circuit when the United States District Court for the Northern District of California found U.S. Patent No. 5,820,551 unenforceable due to inequitable conduct. Therasense, Inc. (now Abbott Diabetes Care, Inc.) and Abbott Laboratories (collectively, “Abbott”) appealed that decision, ultimately prompting the entire Federal Circuit to hear the case en banc in order to try to reign in the terribly incoherent law of inequitable conduct.

In his majority opinion, Chief Judge Rader explained that the theory of inequitable conduct, which renders all of the claims of a patent unenforceable if there is fraud committed on the Patent Office, started as an extension of the doctrine of unclean hands, eventually maturing from there. Rader explained: “As inequitable conduct emerged from unclean hands, the standards for intent to deceive and materiality have fluctuated over time.” To those who are familiar with the meandering and nearly inexplicable development of the law of inequitable conduct will recognize that this statement from the Chief was easily the understatement of the year in the patent world. He gingerly started to address what all fair minded observers know; namely that the law of inequitable conduct has wildly fluctuated over time, as well as from case to case, thanks to absolutely no mooring of the fundamental intent and materiality prongs.

In truth, once upon a time back in the late 1980s, in Kingsdown Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867 (Fed. Cir. 1988), there was a mooring of the law for an ever so brief period of time. The Federal Circuit sitting en banc heard that case as well, apparently bringing a much needed settling to the law of inequitable conduct. Of course, over time that settling was chipped away at by panel after panel who were all too willing to find inequitable conduct. Monday morning quarterbacking is one thing, but inequitable conduct is “the atomic bomb of patent law,” as Chief Judge Rader explained, yet it was treated by many panels of the Federal Circuit as little more than something to be manipulated as necessary to prevent what was perceived as bad acting with the hindsight of many years. Over time that hindsight seemed to hardly care whether there was actually any real intent to deceive, and it didn’t seem to care if there was true materiality. If it seemed that someone knew or should have known and the CAFC panel would have intellectually been curious about the reference then it should have been disclosed.

This was never what inequitable conduct was supposed to be, and it seems that thankfully it is not what it is any longer. That type of failure to understand the patent prosecution process, and failure to understand how patent practitioners would respond, has led the Patent Office to be dumped upon with marginally relevant to non-relevant prior art when the innovation seems to be commercially viable. That was the only way one could have any belief that the moving target Federal Circuit standard could likely be satisfied. This caused something of an administrative nightmare for the Patent Office and lead patent practitioners not to meaningfully participate in patent prosecution — instead playing hide the ball for fear of saying something inaccurate to a Patent Examiner.

In any event, Chief Judge Rader correctly explained that a finding of inequitable conduct renders all claims of the patent in question to be unenforceable, in some cases can endanger a substantial portion of a company’s patent portfolio due to the fact that inequitable conduct in one case can taint other cases, can “spawn anti-trust and unfair competition claims,” and “may also prove the crime or fraud exception to the attorney-client privilege.” He would go on to say that it is no wonder that it is the defense de jour, raised in every case even when there is scant (or no) evidence to support the charge.

As he led into the Court’s proclamation on the new law of inequitable conduct, Rader explained the need for honesty at the USPTO, as well as the need for a change. He explained:

While honesty at the PTO is essential, low standards for intent and materiality have inadvertently led to many unintended consequences, among them, increased adjudication cost and complexity, reduced likelihood of settlement, burdened courts, strained PTO resources, increased PTO backlog, and impaired patent quality. This court now tightens the standards for finding both intent and materiality in order to redirect a doctrine that has been overused to the detriment of the public.

To prevail on a claim of inequitable conduct, the accused infringer must prove that the patentee acted with the specific intent to deceive the PTO. This requires both proof of intent and materiality. With respect to intent Chief Judge Rader explained:

A district court should not use a “sliding scale,” where a weak showing of intent may be found sufficient based on a strong showing of materiality, and vice versa. Moreover, a district court may not infer intent solely from materiality. Instead, a court must weigh the evidence of intent to deceive independent of its analysis of materiality. Proving that the applicant knew of a reference, should have known of its materiality, and decided not to submit it to the PTO does not prove specific intent to deceive.

Because direct evidence of deceptive intent is rare, a district court may infer intent from indirect and circumstantial evidence. However, to meet the clear and convincing evidence standard, the specific intent to deceive must be the single most reasonable inference able to be drawn from the evidence. Indeed, the evidence must be sufficient to require a finding of deceitful intent in the light of all the circumstances. Hence, when there are multiple reasonable inferences that may be drawn, intent to deceive cannot be found…

Because the party alleging inequitable conduct bears the burden of proof, the patentee need not offer any good faith explanation unless the accused infringer first proves a threshold level of intent to deceive by clear and convincing evidence. The absence of a good faith explanation for withholding a material reference does not, by itself, prove intent to deceive.

(citations and quotations omitted).

With respect to materiality Chief Judge Rader explained:

This court holds that, as a general matter, the materiality required to establish inequitable conduct is but-for materiality. When an applicant fails to disclose prior art to the PTO, that prior art is but-for material if the PTO would not have allowed a claim had it been aware of the undisclosed prior art. Hence, in assessing the materiality of a withheld reference, the court must determine whether the PTO would have allowed the claim if it had been aware of the undisclosed reference. In making this patentability determination, the court should apply the preponderance of the evidence standard and give claims their broadest reasonable construction.

The Federal Circuit did, however, recognize that in particularly egregious situations where there is a carefully coordinated scheme to defraud but-for materiality is not necessary. Rader explained:

Although but-for materiality generally must be proved to satisfy the materiality prong of inequitable conduct, this court recognizes an exception in cases of affirmative egregious misconduct. This exception to the general rule requiring but-for proof incorporates elements of the early unclean hands cases before the Supreme Court, which dealt with deliberately planned and carefully executed schemes to defraud the PTO and the courts. When the patentee has engaged in affirmative acts of egregious misconduct, such as the filing of an unmistakably false affidavit, the misconduct is material.

(citations and quotations omitted).

While I have said over and over again that I thought the right approach to the inequitable conduct morass would be to adopt Rule 56, thinking at least that is a concrete standard that everyone knows. It would also force the reluctant members of the Federal Circuit to reign in their approach. Thankfully, the Federal Circuit did not take me up on that suggestion. In fact, they did me one better. They announced a standard they view as more narrow than that found in Rule 56, which should be music to the ears of patent practitioners and patent owners, and be cursed by copyists and infringers.

Chief Judge Rader explained that under Rule 56 patent practitioners could be required to divulge references “that a patent examiner would readily agree was not relevant to the prosecution after considering the patentee’s argument.” Moreover, Rader explained: “[T]he second prong of Rule 56 broadly encompasses anything that could be considered marginally relevant to patentability.” This lead into the conclusion:

Because Rule 56 sets such a low bar for materiality, adopting this standard would inevitably result in patent prosecutors continuing the existing practice of disclosing too much prior art of marginal relevance and patent litigators continuing to charge inequitable conduct in nearly every case as a litigation strategy.

In this case, the district court held the patent unenforceable for inequitable conduct because Abbott did not disclose briefs it submitted to the EPO regarding the European counterpart patent. The Federal Circuit vacated this determination and remanded for further consideration, instructing the district court to “determine whether the PTO would not have granted the patent but for Abbott’s failure to disclose the EPO briefs.”

All in all a wonderful opinion that at least for the time being seems to have struck the exact correct balance, returning inequitable conduct to what it was intended to be. Hopefully this en banc decision doesn’t go the way of Kingsdown, lead to panels continuing to do whatever they want and another need to reign in a legal theory gone amuck.

Bravo to the Federal Circuit!

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Posted in: Federal Circuit, Gene Quinn, IP News, IPWatchdog.com Articles, Patent Litigation, Patents, USPTO

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

 


23 comments
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  1. Thanks for the nice summary, Gene. Hopefully this means that defendants will stop wasting precious trial time with weak inequitable conduct claims.

  2. Oh darn! There goes that 500-reference IDS I was so looking forward to filing . . .

    A wise and very fair decision indeed; thanks CAFC!

    IC has rightfully been banished to the rarely-used or justified corner of patent law and practice where it was always meant and intended to be.

    As always, Gene; thanks for the good news and great analysis.

  3. This case does not reign in IC. Instead it obliterates it. I don’t understand how Gene sees it as a good balance. This will make it nearly impossible to prove inequitable conduct in the most glaring instances of inequitable conduct, unless a prosecuting patent attorney is dumb enough to state in a deposition “I deliberately decided to withhold that reference in a successful attempt to defraud the PTO and get that claim allowed.” Of course, if the prior art is that strong, the defendant has probably already won on invalidity, but the defendant should not have been sued in the first place, and encouraging IC, which this opinion certainly does, will harm many defendants.

  4. DC-

    It is balanced because inequitable conduct is alleged in every case and is almost never actually present. Sure, inequitable conduct can be present if you ignore the intent requirement (or say it means less than a specific mens rea) or if you pretend that something not capable of making a good rejection is material.

    This is balanced because it will be useful as often as it really exists.

    For the record, I don’t think you need an admission to prove inequitable conduct. I think you are making an extraordinarily broad, and incorrect, statement there. I still think a dead on reference in a foreign prosecution that is not turned over will be enough, for example. As has always been the case, Rader explained that because actual evidence of intent is almost never going to be present (i.e., not going to have the admission) circumstantial evidence can still be used.

    -Gene

  5. I don’t think this makes all that big a difference to a prosecutor (it’s a game changer for litigation, but not all that much for prosecution). Remember that inequitable conduct is proven by the paper record and ambush at deposition, not your subjective intent. I’ve seen two very honest, very competent patent attorneys (and one good heart but totally empty headed attorney) lose because of inferences drawn from the paper record. If a reference crosses your desk and leaves any record that you ever knew of it, then unless you READ every word of a reference, and you and KNOW there’s nothing in it that will EVER be material to any claim that you add in the FUTURE, you still have to IDS it.

    There seems to be one change, at pages 33-34? By adopting “but for” and discarding Rule 56 “inconsistent with a position the applicant takes,” but not commenting directly on “reasonable examiner,” is the Federal Circuit overruling McKesson Information Solutions, Inc. v. Bridge Medical, Inc., 487 F.3d 897, 82 USPQ2d 1865 (Fed. Cir. 2007) (relying on “reasonable examiner” standard) and Dayco Products, Inc. v. Total Containment Inc., 329 F.3d 1358, 66 USPQ2d 1801 (Fed. Cir. 2003), so that we can stop IDS’ing Office Actions and and Replies to OA’s? What do others think?

  6. David,

    I think the same logic you use with your first paragraph applies to your second paragraph.

    Prudence still dictates IDS’ing anything that might be construed to be material under the Rule 56 standard.

    I note that that standard still applies to the prosecution side. Whether or not the courts fashion a penalty short of the inequitable conduct death strike remains to be seen.

  7. What, you mean to prove inequitable conduct you actually have to have evidence that there was some sort of inequitable conduct? That sort of blows my theory on how common sense relates to the courtroom…

  8. Gene-
    Judge Rader did allow for circumstantial evidence, then gutted the circumstantial evidence theory, especially in your scenario, with the “single most reasonable inference” requirement. Failure to cite a spot-on foreign cited reference can be raise the equally likely inference of managerial error, secretarial error, or mere lack of awareness of where all the claim sets are in a complex patent family. Are any of those inferences unreasonable?
    Here is a scenario: A newsletter issued by the inventor shows a bicycle with two wheels (same size), a seat and a handle bar (go with the hypothetical). Four years later, after publishing and selling, the inventor files a patent, using illustrations from the newsletter (and no other illustrations), and providing a spec that points out the two wheels (same size), a seat and a handle bar (go with the hypothetical) and a claim using identical language and nothing more. The claim reads on the illustrations. The examiner shows him a bicycle with two wheels (different size), a seat and a handle bar. He argues the reference does not show two wheels (same size), and the claim is allowed. He never mentions his newsletter or his years of sales. You have but-for materiality. Do you have deliberate intent, or merely an inventor that does not understand Rule 1.56, 35 USC 102 and the claim language in combination with a lawyer who does not know the provenance of the patent drawings?
    In this undeniable instance of inequitable conduct, how do you prove a deliberate decision to withhold? Gross negligence is not enough. A smoking gun is needed, and likely won’t be found. The patentee is going to litigate, and potentially bury defendants in litigation costs, and this scenario is encouraged by Judge Rader.
    In my hypothetical, the defendant has a few options, including a reexam which will cost ten or twenty thousand dollars, an iffy stay of litigation which will be hotly contested and leave litigation hanging over his head, a summary judgment motion re anticipation which will be contested and probably 56-f’d, and a good chance that the judge will not have what it takes to decide.
    But all this burden is brought on by the initial fraud, which should be discouraged. Past fraud is exonerated by this opinion, and future fraud is encouraged by this opinion. Rather than gutting the defense, the courts could have developed a screening method for ensuring that frivolous assertions of inequitable conduct are not permitted. A better approach would be to require litigants to get approval from the district court judge before pursuing IC discovery. They should have to establish a strong suspicion before imposing the burden of discovery on the plaintiff. This would avoid the plague without essentially eliminating the defense.
    Also, note that inequitable conduct is alleged in every case due to lack of clarity in the rules regarding amended pleadings. You can’t get discovery on the issue unless you allege it, and the facts are typically in the hands of the plaintiff. If you don’t allege initially, and then find good evidence in discovery and in your own research, your request to amend your answer and add the affirmative defense or counterclaim will be opposed vigorously, and might be disallowed by the Court. The automatic pleading of inequitable defense is a result of the pleading rules, which could easily be adjusted. I once filed an answer without pleading inequitable conduct. It turned out to be a mistake, because every discovery request re validity was refused on the basis that it pertained to IC, which was not alleged. But this opinion may only change the language of the pleading of inequitable conduct. It will not stop defendants from pleading it. Even in your scenario, which I have encountered a few times, I would feel compelled to allege inequitable conduct, knowing that Therasense has made it too difficult to prove, on the off chance that I might get a clear admission in a deposition. I suspect that an attorney testifying to his incompetence would readily defeat the allegations, since there are likely more incompetent attorneys than evil attorneys.

  9. DC,

    I think your own question needs to be answered:

    Are any of those inferences unreasonable?

    Pause here and seriously answer this question before proceedinig on your crusade.

    Your rant belies:

    your not-so-hidden anti-patent bias (wherein you clearly assume some type of infringer’s rights: “The patentee is going to litigate, and potentially bury defendants in litigation costs” ),

    your anti-judicial system bias (wherein you clearly assume that judges are are pro-patent when they shouldn’t be “ a good chance that the judge will not have what it takes to decide.“) and

    you have clearly set your hypothetical to only portray your strawman situation (wherein you unequivacally say that Fruad is underway IN SPITE OF any answer that I ask you to give tot he first question in my post -and which that answer sets your strawman ablaze “all this burden is brought on by the initial fraud“).

    You complicate your wishful and rather fanciful scenario with a groundless statement of “Also, note that inequitable conduct is alleged in every case due to lack of clarity in the rules regarding amended pleadings.

    Please, no building of castles on beaches after drinking Kool Aid.

  10. I did not know I was ranting, I thought I was discussing, with the goal of illuminating what is left of IC.
    I thought I had a pro-patent bias, having filed a few thousand patent applications here and abroad and made a living for a decade or two doing that. I also litigate, so I don’t have much bias against the judicial system. I have an anti-frivolous patent litigation bias, and I feel that I have done fairly well with the judicial system in getting judges to help protect non-infringing companies from infringement suits. But enough about me and my biases. Let’s continue discussing the case:
    Are any of those inferences unreasonable? Re failure to cite a spot-on reference, I think they are all reasonable, and thus suggest that failure to cite a foreign cited reference may never support a finding of IC.
    Yes, I have clearly posed a hypothetical in which is different from Gene’s hypothetical. I think it comes closer to a single reasonable inference, and it is about as good as I can think of without a smoking gun.
    Re the rules regarding amended pleadings, I would be interested in hearing thoughts as to how to include IC allegations when there is not yet a strong suspicion, to avoid the trap of being refused an amended pleading when inventor correspondence provides a smoking gun late in discovery. That is a real life scenario.

  11. Blind Dogma May 26th, 2011 10:53 am –

    Read both the opinion and my posting again, and tell me what you think.

    The court expressly discards the Rule 56 standard. I think this means that Rule 56 and its “inconsistent with a position” standard are no longer the law. If the previous two sentences are true, then “Prudence [does not] dictate IDS’ing anything that might be construed to be material under the Rule 56 standard.” Agree or disagree?

    “Reasonable examiner” standard, though there’s no explicit holding, seems to be discarded as well, in favor of “but for.” True?

    Also, I think we’d agree that OA’s and Replies are not prior art, and thus they can’t be material under a “but for” standard?

    It seems to me that Dayco, McKesson, and the panel Therasense decisions, and their requirements to IDS OA’s and Replies are no longer the law. What do others think?

  12. David,

    The court expressly discards the Rule 56 standard. for the Court’s doctrine of inequitable conduct.

    This is an important distinction to keep in mind as I am seeing this mistake being made by lots of people.

    The Court expressly did not reach into the workings of the Office itself during prosecution. That “standard” very much still exists and is very much still a requirment, or to be more precise, is still a duty. My comments above were to this duty, and were not to a future accusation of inequitable conduct as a defense in a court proceeding.

    As I indicated above, the courts have not fashioned an equitable penality – but would it be prudent to assume that they will not?

  13. David:
    I think that duty to cite OA’s from other examiners, still holds. Although I have never agreed that a slipshod rejection of a related claim is material to examination. On this point, I wish the PTO would make explicit whether OA’s, ISR’s, and foreign office actions need be cited.

  14. “Proving that the applicant knew of a reference, should have known of its materiality, and decided not to submit it to the PTO does not prove specific intent to deceive.”

    I will give this a try.

    On intent, it seems to me some reasonable basis can be established for what could be mistaken or otherwise seen as intent to deceive. Not proving what an applicant knew, but rather didn’t. As said above “decided not to submit it”; with a question — if that not submitted it’s materiality proven should serve as the mistaken “intent to deceive” first step ?

    I know well how important research is, and to know what it is that you’ve found and it’s importance to your development. The who, what, when and where applies to the basis of every development decision made regardless if *you* do the research or not. It is what you don’t know that you are unable to make any claim about — one way or the other. And that is no mistake.

    A decision not to include what has been found because of a claim of a lack of knowing it’s importance to a development — with at the same time written claims based upon such findings by an applicant are questionable at face value in my opinion. I have no doubt a Court would have some problems with claims that important information having materiality not included but are based upon.

    Thanks.

  15. New Here,

    You have been warned and admonished, yet you persist in your deterioration.

    “If language is not correct, then what is said is not what is meant; if what is said is not what is meant, then what must be done remains undone; if this remains undone, morals and art will deteriorate; if justice goes astray, the people will stand about in helpless confusion. Hence there must be no arbitrariness in what is said. This matters above everything”

  16. @New Confucius

    It is an open comment addressed to no one.
    What is your meaning please by deterioration ? seeing that I’ve just about went as far as to beg to be banned if I’m not wanted here in the past.

    Confucius quote is not talking about what you think it is.

    If any misunderstanding let me clear it up for you. The Law of Inequitable Conduct change is a good one and makes for better cases in the future without the waste of Court time and money. My comment addresses in the best terms I can put it in. That the cry of Inequitable Conduct on the basis of just what an applicant knew — not only isn’t good enough, but runs risk with what is proven that an applicant doesn’t know that is important to claims made and not included.

    “Learn as though you would never be able to master it; Hold it as though you would be in fear of losing it”
    Understand ?

  17. One that you should cling to, New Here – express yourself as if you wish to be understood.

    In that sense, the quote from Confucius is abundantly clear and that message does not “remain undone.” You should strive for such clarity.

    Open comment addressed to no one” is simply not quite the same as “Open blathering meant to be understood by no one

  18. @Blind Dogma

    “the quote from Confucius is abundantly clear”

    And so is the other quote. What do you know about what Confucius meaning is regarding the second quote ?
    If you’re going to go around with quotes that happen to fit to make a point is going to require a better understanding then yours.

    Confucius lived more then two thousand years ago, and language as it was then Confucius isn’t talking about English grammar or composition. Today many languages remain unchanged from Confucius”s time. Confucius sayings are tricky and require some time to get his real meanings from them because they can apply to so many things. Confucius was a great thinker and his vision was even for his time strange.

    A big green mistake is to assume that Confucius’s writings can be read and understood in modern English not knowing that over two thousand years with the development of languages that somehow English has to have it right ! Right !

  19. Typo:

    Was to read:
    A big green mistake is to assume that Confucius’s writings can be read and understood in modern English not knowing that over two thousand years with the development of languages that somehow believe English has to have it right ! Right !

  20. New Here,

    Your understanding is as muddled as your prose. You make assumptions about what I do or do not understand of Confucius.

    You think far too highly of what is in your own mind and you think not near enough of your audiance. You continue to be lazy and far too full of yourself in posting so carelessly. You hold what is in your mind as the better understanding, but no one can tell if that is indeed true or not because you lack the ability to express that understanding. All anyone can see is the gibberish you insist on posting. As is evident, I am not the only one who feels so – I just happen to be one that cares enough to tell you.

    I undersrtand Confucius far better than you give me credit. The meaning of the quote is extremely apt in its use here, as no matter what language you think you are using, your improper use (and understanding, or lack thereof) has exactly the result that Confucius points to. What must be done (understanding what you are trying to say) still remains undone.

  21. @BD

    Confucius wasn’t talking about a subject as vast as linguistics. I understand it serves, and that it does only because that is the imposed meaning. “language” was never the exact science you seem to believe.

    Mathematics has often been called the “language” of the Universe. Language alone has many meanings beyond mathematics to many people with more often independent histories that guided their language developments.

    Confucius works were not fully accepted in his time, but rather some time after his death when most of his work was written by close followers of his. This begs a question of how much change did Confucius works go through by those that didn’t understand his works though he had such great writing abilities. These changes and other factors you’ve not taken into consideration reading Confucius.

    Next time at Barnes & Noble, find some references on Confucius works and you may find that his meanings as he meant them, but now such meanings are lost with him because we are unable to get back with him to learn the differences.

    Last, please note that in the resent past the finds that have uncovered lost “languages”, and consider the impact that may have had in the world on all languages developments.

  22. These changes and other factors you’ve not taken into consideration reading Confucius.

    An assumption on your part – and one that is meaningless given the current exchange of meaning.

    You really shouldn’t take such glory in being misunderstood. The level of effort you givve to defending your lazy habits is amazing. You would be much better off (as we all would be), if you applied that effort in the first instance and composed your thoughts (and expressed them according to the established rules of the English language) prior to sharing them. The point, after all, of sharing your thoughts is to have them understood, correct?

  23. [...] Circuit cases like Kingsdown. Thus, it was necessary for the Federal Circuit, sitting en banc, to clarify the law. In so doing the Federal Circuit held that the intent prong of the inequitable conduct test [...]

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