Register | Login
Intellectual Property Today
RFC Express - Document Management System

The Standard For Attorney Diligence Is High1

By Charles L. Gholz2 and Christopher Ricciuti3


In re Enhanced Security Research, LLC, 739 F.3d 1347, 109 USPQ2d 1265 (Fed. Cir. 2014) (opinion by Circuit Judge Dyk joined by Circuit Judge Taranto, over a dissent on other grounds by Circuit Judge O’Malley) (hereinafter referred to as “ESR”), was an appeal from the BPAI4 in an ex parte reexamination.5 It involved attorney diligence in the context of 37 CFR 1.131 declarations rather than in an interference context. However, the majority relied on an interference precedent in reaching its conclusion, and it seems likely that subsequent panels will, in turn, apply this precedent in the interference context.


The document that Enhanced Security Research, LLC (hereinafter referred to as “ESR”) sought to remove as a reference against the claims in its patent in reexamination (hereinafter referred to as “the ‘236 patent”) “contain[ed] an inscription that dates it to May 1996...,”

To view the complete article you must be logged in
Login Now

Not A Member Yet? Sign Up For A Free 10 Day Trial Account!

  © Copyright 2015 Intellectual Property Today
Download Adobe Reader for free