How does the USPTO handle duty of disclosure and inequitable conduct issues?
The United States Patent and Trademark Office (USPTO) generally does not handle duty of disclosure or inequitable conduct issues during the examination process. According to MPEP 2010, “It is the courts and not the Office that are in the best position to fashion an equitable remedy to fit the precise facts in those cases where inequitable conduct is established.” The USPTO lacks the tools to deal with these issues effectively, and examiner determinations on such matters would likely not prevent subsequent litigation in courts.
Furthermore, the MPEP states that “examiner determinations generally will not deter subsequent litigation of the same issue in the courts on appeal or in separate litigation.” As a result, patent examiners do not investigate or reject applications based on duty of disclosure violations under 37 CFR 1.56.
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