“Applied to patent prosecution, fraud requires (1) a false
representation or deliberate omission of a fact material to
patentability, (2) made with the intent to deceive the patent
examiner, (3) on which the examiner justifiably relied in
granting the patent, and (4) but for which misrepresentation or
deliberate omission the patent would not have been granted.”
C. R. Bard, Inc. v. M3 Systems Inc., 157 F.3d 1340, 1364,
48 USPQ2d 1225, 1242 (Fed. Cir. 1998).
Sever has failed to establish that Glickman derived the
invention from Sever, and thus, Sever has failed to demonstrate
that Glickman knew of the Sever invention. Without demonstrating
that Glickman had such knowledge, there is no demonstration of
materiality or intent.
Further, in response to a show cause order, a party is not
entitled to file a preliminary motion seeking judgment against
another party3. Sever is essentially seeking judgment against
Glickman on the theory that Glickman committed a fraud against
the PTO. Sever is impermissibly reconstructing the rules.
Furthermore, interferences are not cancellation proceedings.
The Supreme Court has rejected the notion that “there is a
fundamental and basic right of opposition on the part of any
3
3 An applicant may file a response to the order, which may
include an appropriate preliminary motion under § 1.633(c), (f)
or (g), and state any reasons why summary judgment should not be
entered. 37 CFR § 1.617(b).
11
Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: November 3, 2007