First the ethics, now the misconduct ...

First it's patent litigation ethics, now it's plain misconduct -- is this the hand of coincidence at work or is there someone at Oxford University Press who is out to stir the consciences of United States patent litigators?

Just published, and the focus of this note, is Patent-Related Misconduct Issues in U.S. Litigation by Joel Davidow (a partner in IP boutique Kile Goekjian Reed and McManus of Washington, DC). The publisher's blurb claims that this is "the first book of its kind to provide a comprehensive review of misconduct claims and defenses, with reference to existing case law and litigation strategies", pointing out that it is "designed to serve as the first comprehensive review of conduct defenses and counterclaims, with a focus on existing case law and litigation strategies". So what's in it for the reader?

"The first section of the book addresses claims involving misuse of the patenting process, with a focus on patents on a product or process the patentee did not invent as claimed and inequitable conduct claims, including intentional failure to cite material references and false or misleading declarations. From here the book turns to claims based on the misuse of the litigation process, including baseless and bad-purpose suits. The third and final section of the book describes claims based on the misuse of the competitive (antitrust) and licensing processes [the author has also served a substantial term with the Antitrust Division of the Department of Justice, so this is obviously a pet topic]. Each section of the book is divided into sections devoted to law and strategy, with practical guidance related to handling document demands and other discovery requests, expert testimony and waiver issues.

This book is designed to provide patent litigators with a double arsenal of unprecedented case-law analysis [personally I prefer it 'precedented' if I'm to cite it in court ..] and litigation strategy related to the "wild cards" of infringement cases: affirmative defenses and counterclaims based on assertions of patent-holder misconduct. ...".

What is fascinating is the thought that United States practice can generate the need for a book like this while in the European Union, a market which is twice the size and has a pretty good slice of patent litigation before it, no book on this topic has ever emerged.

Bibliographic data. xv + 233 pages. Paperback, ISBN 978-0-19-533720-4. Price: £110. Web page here.