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Dippin’ Dots, Inc., et al. v. Mosey, et al. v. Esty, Jr., et al.

Posted in Opinion Commentary by Jake Ward on February 11, 2007

To find a prosecution omission fraudulent for purposes of Walker Process fraud, there must be evidence of intent separable from the simple fact of the omission.

(Fed. Cir. 2007, 05-1330)


Dippin’ Dots, Inc. (“DDI”) appealed from the district court’s claim construction and summary judgment of noninfringement of U.S. Patent No. 5,126,156 (“the ’156 patent”) and from the judgment following jury trial that all claims of the ‘156 patent are obvious, that the patent is unenforceable due to inequitable conduct during prosecution, and that DDI violated the antitrust laws by asserting a patent that had been procured through fraud on the Patent Office.  The CAFC affirmed the findings of noninfringement, obviousness, and unenforceability due to inequitable conduct, and reversed as to the “Walker Process” antitrust counterclaim.