Fraud
Sever argues that since the Sever application and the
Glickman patent are nearly identical, it is obvious that someone
stole the invention, and that the proper place to resolve the
fraud upon the PTO, e.g. the theft of the invention, is through
this interference (Paper 20 at 3). Even if we were to agree that
the Glickman patent and the Sever application are nearly
identical, that does not relieve Sever from its burden to
demonstrate that it is entitled to a patent relative to the
patentee. The burden is still upon Sever as the junior party to
demonstrate that Glickman derived the invention from Sever.
Sever has failed to sufficiently demonstrate that Glickman
derived the invention from Sever. The condition precedent to
addressing the fraud issue is for Sever to establish that
Glickman did derive the invention from Sever. Without derivation
there can be no showing of fraud.
Questions of fraud and inequitable conduct require a showing
of materiality and intent. “Inequitable conduct includes
affirmative misrepresentations of a material fact, failure to
disclose material information, or submission of false material
information coupled with an intent to deceive." PerSeptive
Biosystems, Inc. v. Pharmacia Biotech, Inc., 225 F.3d 1315, 1318,
56 USPQ2d 1001, 1003 (Fed. Cir. 2000).
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