Article · Intellectual Property

Inequitable Conduct and the Duty of Candor: Patent Law's Atomic Bomb

Type
Article
Jurisdiction
National
Date
2026-05-09
Topic
Intellectual Property

Inequitable conduct is the litigation defense that can render an entire patent — and sometimes a whole patent family — permanently unenforceable because the applicant broke the duty of candor owed to the U.S. Patent and Trademark Office. This article maps the duty under 37 C.F.R. § 1.56, the 2011 en banc reset in Therasense v. Becton, Dickinson, and the two independent pillars that now control every case: but-for materiality and specific intent to deceive. It works through the narrow egregious-misconduct exception, the use of litigation misconduct to prove prosecution-era intent under Regeneron v. Merus, and the reach of infectious unenforceability across related patents. On the practical side, it treats the Information Disclosure Statement as the day-to-day heart of compliance, supplemental examination under 35 U.S.C. § 257 as the primary post-grant cure, and Rule 9(b) pleading under Exergen as the gate that screens thin allegations. Plain-language explanations and invented hypotheticals keep the doctrine legible for inventors, executives, judges, and counsel alike.

Inequitable Conduct and the Duty of Candor: Patent Law's Atomic Bomb

Intellectual Property > Patent | Published 9 May 2026 - Updated 25 May 2026 | UpLaw - uplaw.us

A valid invention can still yield a worthless patent. Inequitable conduct punishes how the applicant behaved at the Patent Office, not whether the claims deserved to issue — and when it lands, the whole patent falls. This guide explains the modern Therasense standard, the exceptions that survive it, and the compliance discipline that keeps the bomb in its silo.

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