I am not a patent lawyer so I don't know if there are any cases saying that lawsuits have to be included in a patent application. I had no idea that this lawsuit was going on when the patent application was made; been going on a long time. Since the counsel testified that there was no duty to disclose a lawsuit, I have to assume that there are no decisions saying a lawsuit has to be disclosed. If the judge so rules, it may be a case of first impression.
As I recall my limited knowledge of patent law, TKTX could have objected to or challenged Amgen's patent application. This is my gut reaction, but if it could have challenged the application and gotten the issue before the PTO that way, TKT should be deemed to have waived the fraud issue. Another way to look at it is that it laid behind the log in its litigation: If it had thought its challenge was strong or meritorious, it should have objected. That would have made it material. It cannot now go through the backdoor
of arguing Amgen committed wilful fraud when TKT didn't feel strongly enough to object to the application.
Perhaps there is a patent lawyer who reads the thread who can provide some insight.
It seems to me that anyone can file a lawsuit; the suit may have merit, be frivolous, seek to establish new law. Unless there is something very specific and probability that the plaintiff will win based on existing law, I have trouble thinking that a patent application has to disclose it. Otherwise, the new tactic will be to file quick, precipitous lawsuits in order to stall PTO from issuing patents; the danger is that PTO will just sit there and wait for a decision in the lawsuit. That would be a very bad result. Whether or not Amgen's patent is good should be determined on the basis of the validity of its work, not the ingenuity of its competitors' lawyers in pleading. |
