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Sue L. Robinson: Materiality of Foreign Declaration Questioned

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Under the PTO’s patent-examining manual, applicants “have a duty to bring to the attention of the Office any material prior art or other information cited or brought to their attention in any related foreign application.” According to yesterday’s decision by district judge Sue L. Robinson, however, this duty is tempered by the materiality standard:

“The question remains, how material is a declaration disclosed in foreign patent proceedings, where neither the declarant nor the testing has not been vetted through the discovery process and where the declaration was not ultimately sufficient to invalidate the European counterpart?”
Answering in the negative, the Court found that “such a declaration is not material and, therefore, irrelevant . . . .”

Takeda Pharma. Co. Ltd. v. Teva Pharma. USA Inc., C.A. No. 07-331-SLR (D. Del. Mar. 4, 2009) (Robinson, J.).

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