Burying
Posted: 21 Feb 2011 Last revised: 21 Apr 2018
Date Written: February 21, 2011
Abstract
When applying for a patent, applicants must provide the examiner with all known material prior art. Those who fail to do so can be charged with inequitable conduct. But applicants can still effectively hide important prior art by submitting it with hundreds of other unimportant references. This deceptive practice, known as “burying,” overloads the U.S. Patent and Trademark Office and hinders innovation, yet it generally is not considered inequitable conduct. This Essay summarizes the current legal landscape concerning burying, discusses the costs associated with the practice, and suggests ways to deter and punish those who do so.
Keywords: Patent, inequitable conduct, burying, bury, prior art, patent office, PTO, USPTO, disclosure
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