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Circumstantial Evidence of Intent to Mislead
PTO Sufficient to Uphold Finding Of Unenforceability
In Cargill, Inc. v. Canbra Foods, Ltd., No. 06-1265 (Fed. Cir. 2007), the Federal Circuit ruled that the district court did not abuse its discretion in finding that two of Cargill's asserted patents were unenforceable as a result of inequitable conduct even though there was no direct evidence of intent to mislead the PTO.
The patents at issue relate to a canola oil ('IMC 130') with superior oxidative and fry stability to prevent off-flavored food and undesirable odors when stored. Oxidative stability can be measured in at least two ways: Active Oxygen Method ('AOM') hours, or in terms of peroxide and para-anisidine. Each of the patents at issue includes claims directed to 35-40 AOM hours. During prosecution, the examiner initially rejected one of the patents over a reference that was claimed to inherently have a stability of 35-40 AOMs. Specifically, the examiner reasoned that the reference recited a similar fatty acid composition to that of IMC 130 and that AOMs were directly related to this fatty acid composition. The applicant, however, successfully overcame the rejection by arguing that test data in the specification showed that an oil designated as IMC 129 (which had a similar fatty acid composition to IMC 130) had strikingly dissimilar AOM properties.
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