Hi, all,
I'm writing an article and updating a chapter in a book. I'd like to know if you have views on these questions. Please think about these from the perspective of the purpose of these bars which, ostensibly, is to prevent a lawyer who is engaged in "competitive decision-making" (which includes some forms of prosecution, but not all) from misusing information disclosed by an opposing party during litigation to benefit the prosecution client.
1. Currently, courts tend to make the length of the bar 2 years from the end of litigation, including any appeal. (a) Is two years too long in some technologies? If so, which? (b) Whatever the appropriate length of time, should it be measured from the end of appeals? If not, from what point in time?
2. Should IPR be included? Reissue (either within 2 years or outside)? Other activities?
3. Prosecuting patents is not enough. What objective evidence should courts look for in deciding whether someone's prosecution activities rise to the level of "competitive decision-making"? For example, presumably there is less of a concern where in-house counsel do the preparation and outside counsel essentially file and then prosecute from there.
4. In your experience, are prosecution bars put in place too readily, or too unwillingly, or just about right?
5. Other random thoughts.
All posts will become eligible to be read by me and maybe included in some roundabout way in the article.
David