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44 Creighton Law Review 329 (2011)


While other countries have adopted some form of disclosure requirement,the United States is unique in requiring such breadth ofcandor and in linking failures to disclose with the threat of inequitable conduct and the sanction of unenforceability. Given that patent offices worldwide have proven capable of carrying out quality patent examination without the heavy burden of Rule 56 and the dramatic consequences of a finding of inequitable conduct, the question naturally arises as to whether either the duty of candor or the doctrine of inequitable conduct, or both, are necessary in today's patent world. This Article takes the position that they are not. While most legal commentators have focused attention on the need to reign in inequitable conduct, this Article will concentrate primarily on the duty of candor and will argue that, given the nature of contemporary patent examination, the obligation to disclose all known prior art should be significantly limited, if not eliminated entirely.