Fletcher YoderThe Trademark Trial and Appeal Board (TTAB) held that “reckless disregard” for the truth or falsity of Declaration(s) submitted during the course of trademark application process is sufficient for a finding of fraud on the USPTO.
The Federal Circuit holds that (a) products marked with expired patent numbers are “unpatented” articles under 35 U.S.C. § 292 and therefore falsely marked, and (b) such marking with knowledge that the patent is expired creates a rebuttable presumption of “intent to deceive the public.” However, this presumption is “weak” and can be easily rebutted.
An applicant engages in inequitable conduct when he makes a false material statement with the intent to deceive. Under the reasonable examiner standard, information is material when a reasonable examiner would consider it important in deciding whether to allow the application to issue as a patent. Intent to deceive may be construed from the affirmative act of submitting an affidavit containing false statements because there is an implied intent for the affidavit to be relied upon by the examiner.