Inequitable Conduct and Supplemental Examination: Promise, Procedure, and Particulars

The America Invents Act, signed into law on September 16, 2011, ushered in an array of patent reforms. One overlooked procedure, Supplemental Examination, seeks to purge putative instances of inequitable conduct prior to litigation by allowing patent owners to submit prior art and short statements to the USPTO after patent issuance. Few parties have used it. We analyze the law of inequitable conduct, explain the Supplemental Examination procedure, and discuss potential reasons for its lack of popularity among patent owners.