To Disclose or Not to Disclose: Duty of Candor Obligations of the United States and Foreign Patent Offices

Many patent offices around the world have rigorous prior art disclosure requirements. U.S. patent applicants not only must meet each individual country\u27s criteria for disclosure, but also must contend with allegations of inequitable conduct from patent infringers which may render their patents unenforceable. This article argues that the new prior art disclosure rules promulgated by the USPTO unfairly shift the burden of examining patent applications onto patent applicants, and create a situation ripe for allegations of inequitable conduct. This article also examines how other countries handle disclosure obligations, and recommends several alternative systems that would meet the USPTO\u27s objectives of increasing quality and efficiency while relieving the plague of inequitable conduct cases