TYPOGRAPHICAL ERROR IN TABLE OF PATENT THAT WAS CARELESS MISTAKE DID NOT SHOW CLEAR EVIDENCE OF INTENT TO DECEIVE

摘要

Evidence that tended to prove that a typographical error in the table of a patent that claimed a new composition or formulation to deliver an active ingredient approved by the Food and Drug Administration (FDA) was an honest mistake, though perhaps a careless one, did not show clear evidence of intent to deceive, as required to invoke the crime-fraud exception to pierce the patentee's attorney-client privilege. The coinventor submitted a declaration during the reissue proceedings to explain the error and the error itself did not alter the arguments made to the Patent and Trademark Office (PTO). Unigene Laboratories, Inc. v. Apotex, Inc., 99 U.S.P.Q.2d 1858, 2011 WL 3715557 (Fed. Cir. 2011)