A Federal Circuit decision finding a Regeneron Pharmaceuticals Inc. patent unenforceable due to inequitable conduct based partly on the behavior of litigators in an infringement case has alarmed attorneys who seek patents, who said it is unfair to tarnish the reputation of patent prosecutors using the actions of others.

Inequitable conduct is found when a patent applicant breaches its duty of candor to the U.S. Patent and Trademark Office during the application process, and it has been called the “atomic bomb” of patent law because it renders the patent entirely unenforceable. The Federal Circuit on July 27 upheld a lower court ruling imposing the severe punishment on Regeneron.

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The Federal Circuit decision is understandable given the pervasive misconduct the court identified during litigation, all of which appeared to be part of an effort to cover up the alleged intent to deceive the patent office, said Bryan Wheelock of Harness IP & Pierce PLC. Since the litigation misconduct in the case was so closely tied to the alleged prosecution misconduct, “it’s hard to argue with the end result, but the effect on prosecutors is really disturbing,” he said.

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“What it tells patent prosecutors is, pay attention to the patents you get when they’re being litigated,” Wheelock said.

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