Egregious Misconduct Claim Shot Down by District Court
As most patent reexaminations are conducted in parallel to a related litigation, it is important that the USPTO be informed of the progress of a parallel litigation. For this reason, MPEP 2282; 2686 permit the filing of litigation notices by any party to the proceeding, or even a member of the public. The simple failure to inform the USPTO of a parallel court proceeding had, prior to Therasense, been held to be per se material under the former “reasonable examiner” standard. Nilssen v. Osram Sylvania, Inc., 504 F.3d 1223, 1234 (Fed. Cir. 2007)
But what about an arbitration proceeding, does the same duty apply? …and, does the heightened Therasense standard disturb the earlier Nilssen ruling?