Interference No. 103,146
that art; (c) if the applicant did know of that art, a
showing that the applicant did not know of its materiality;
or (d) a showing that the
applicant's failure to disclose the art did not result from
an intent to mislead the PTO. Id.
Information is "material" when there is a
substantial likelihood that a reasonable examiner would have
considered the information important in deciding whether to
allow the
application to issue as a patent. See Molins, 48 F.3d at
1179, 33 USPQ2d at 1827. However, an otherwise material
reference need not be disclosed if it is merely cumulative of
or less material than other references already disclosed. See
Halliburton Co. v. Schlumberger Tech. Corp., 925 F.2d 1435,
1440, 17 USPQ2d 1834, 1839 (Fed. Cir. 1991); Baxter Int'l,
Inc. v. McGaw, Inc., 149 F.3d 1321, 1328, 47 USPQ2d 1225,
1229 (Fed. Cir. 1998).
With regard to the intent of the applicants to
deceive the PTO, Federal Circuit precedent has recognized that
intent need not, and rarely can, be proven by direct evidence.
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