Ordinary Perjury Does Not Constitute “Fraud on the Court” Sufficient to Reopen Patent Litigation

Apotex v. Merck (Fed. Cir. 2007)

Enalapril (VASOTEC) is a Merck drug used to treat high blood pressure. In 2001, the CAFC affirmed that two Apotex patents allegedly covering the drug’s manufacturing process were invalid under 35 USC 102(g) (because the process had been invented and used by Merck prior to Apotex’s invention).

A year after losing, Apotex re-filed its case — charging Merck with alleged fraudulent discovery responses uncovered in a later trial. 

Under FRCP Rule 60(b), a final judgment may be set aside based on the fraud or misrepresentation of an adverse party. Ordinarily, a Rule 60(b) motion must be brought within one year of judgment. One exception is the more serious ‘fraud on the court,’ which has no statute of limitations. Here, Apotex filed the 60(b) motion more than one year after the final judgment — and thus needed to show fraud on the court.

On appeal, the CAFC affirmed the lower court’s dismissal of Apotex’s claims of fraud on the court. False statements made by witnesses being examined do not typically constitute fraud on the court — rather, that charge is reserved to activities that harm “the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury.”  Thus, in this case the alleged false statements made on the witness stand and in attorney argument “do[] not establish corruptoin of the judicial process.”

6 thoughts on “Ordinary Perjury Does Not Constitute “Fraud on the Court” Sufficient to Reopen Patent Litigation

  1. 6

    Dear ‘anonymous’

    Are you implying that there is a fallback position with respect to bringing some sort of civil action in relation to a party who wins an action based on fraud?

    We have a client who was thoroughly abused in a recent patent case due to what can only be described as gross, bald-face lies.

    When we got involved after the fact, the documentation was pretty overwhelming. (Seriously, in one instance they lied to a sitting judge, the client informed the judge and stated that he could show in the transcript that it was a lie, and the judge said “I don’t know if I want to have to go back and read that. The defendant’s counsel has stated that is how I ruled before, and that is how I am going to rule now. You take this up in appeal if you are unhappy.”)

    Anyone care to lend a hand?

  2. 5

    Nevertheless, the first comment does make a good point. There is no reason why “fraud on the PTO” (i.e., inequitable conduct) should not he handled by a doctrine similar to that of Rule 60(b) (although you’d probably want to start the one-year clock from the date on which a defendant had standing to assert the defense).

    Even if a party brings the Rule 60(b) motion within the year, the party must still show something akin to perjury. On the other hand, the CAFC has become increasingly lax in terms of what is needed for a practitioner or inventor to be charged (and convicted) of having committed fraud on the PTO. The Ferring case has set the bar so low on inequitable conduct. Under Judge Dyk’s standard in Ferring, there are probably few file wrappers that don’t fail to evidence something that looks like fraud on the PTO.

    It would seem wise to reserve fraud on the PTO for instances of perjury. This is especially true when the alleged material misrepresentation would affect the validity of none of the patent’s claims.

  3. 4


    Wrong, Monsieur de la Re’

    The problem we have as layman (and oft times even attorney’s get it wrong) is that one makes the assumption because a judge said “x” it must be correct.

    Fraud on the Court is the specious of fraud that is “fraud perpetrated upon the judicial process”.

    It matters not how, whether written, oral, etc.

    The requisite’s on reopening a case just happen to have its origin in the precedent case U S Supreme Ct. In re Hazel-ATlass Glass (1944) which is as ‘on point” being that Hazel was a Patent case.

    We will spare you the hard lesson on the integrity of the Court(s) from within and just tell you what you need to know about the criteria of Fraud on the Court necessary to warrant a finding to reopen.

    While it is not a premise set by the Sup Ct, most circuits have adopted the 5 step rule.

    1. The Fraud must be in a federal venue and be willful
    2. It must be directed upon the court
    3. An oath, aver or pledge under penalty of perjury has to occur (which on the stand is)
    4. It must be by an officer of the court (one who the court approved to work before it)
    5. The fraud attempt against the court must have deceived the court (been initially successful)

    If the testimony that is fraudulent is by you or I and it has not deceived the court. Then you can not reopen a case.

    If, however, the fraud was under oath and an officer of the court (the lawyer for a party) provided such willfully wrong, where the court was deceived, then there are no statute of limitations. For the Officer of the court was the counsel, who is self policing. (such as a lawyer, trustee, court approved professional, FBI agent etc are all self policing)

    When a person entrusted with the “doctrine” of implied integrity due to the office or position by or within the judicial system, that person is an officer of the court. Even a judge is an officer of the court.

    Fed R Civ Proc 60(b) has statute of limitations upon layman fraud. The reason Fraud upon the Court by Officers of the Court has no statute of limitations is because it can never be, as a check n balance of judicial powers, that an officer of the court may use an inherent level of trust and influence upon the system in the hope that a intentional deception need only skate by a time pathway to succeed.

    That being said, whether or not your judge decided correctly will require an attorney’s review who specializes in such “rarely used” legal premise.

  4. 2

    The question in this case was whether you can reopen an old case on the grounds that one of the witnesses on the winning side perjured him/herself.

    The district court seems to have gotten it right. I don’t think that this forecloses the possibility of the losing side suing the winning side or the perjuring witness for fraud, or for otherwise pursuing remedies that don’t involve reopening the case.

    Also, the lawyers could still lose their licenses if the fraud allegations are correct.

  5. 1

    Alright let me get this straight. A practitioner can accidently forget to provide a reference to the USPTO and get nailed for fraud on the patent office. However, the same practitioner can lie through his a$$ on the witnessstand and not defraud the court. Will someone please clarify the rationale behind these inequities?

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