By Jason Rantanen
A few months ago Polk Wagner, Lee Petherbridge, and I circulated an early draft of our empirical study on the characteristics of patents that the Federal Circuit has held to be unenforceable due to inequitable conduct. In response to comments, including many from this site, we have substantially revised the piece (now called simply Unenforceability). We've also put together a 4 page Research Report version that summarizes the key findings. Here's the abstract:
There has been no systematic attempt to determine whether the patent doctrine of inequitable conduct is or is not working as theorized. This study fills that gap. We find that patents held unenforceable have clear hallmarks of risky prosecution behavior, such as longer pendency and fewer disclosures of prior art as compared to other types of litigated patents. The results indicate that the doctrine is likely to be operating better than the conventional wisdom would suggest.
The shorter Research Report is available here. For those interested in the full-length version, it can be downloaded here. As always, comments are welcome.