How does the USPTO handle judicial determinations of fraud or inequitable conduct in reissue applications?
For reissue applications filed before September 16, 2012, the USPTO takes judicial determinations of fraud or inequitable conduct seriously. According to MPEP 1448:
“Form paragraph 14.21.09.fti should be used for applications filed before September 16, 2012, where the examiner becomes aware of a judicial determination of fraud, inequitable conduct or violation of the duty of disclosure on the part of the applicant independently of the record of the case, i.e., the examiner has external knowledge of the judicial determination.”
In such cases, the examiner will consult with the Technology Center (TC) Training Quality Assurance Specialist (TQAS) or Supervisory Patent Reexamination Specialist (SPRS) and may issue a rejection based on the judicial determination. The rejection will state that the error was not “without deceptive intention” as required by pre-AIA 35 U.S.C. 251.
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