Information is material if "the PTO would not have allowed a claim had it been aware of the undisclosed prior art" or if "affirmative egregious misconduct" has happened.
[3] The unclean hands cases of Keystone Driller v. General Excavator, Hazel-Atlas v. Hartford, and Precision v. Automotive formed the basis for the doctrine of inequitable conduct that developed and evolved over time.
[4] In the 1944 Hazel-Atlas case, a patentee's attorneys also manufactured and suppressed evidence in support of a patent application by hiring an expert to publish an article in a trade journal under his own name praising the invention as a remarkable advance in the art.
In the application to the PTO the patentee claimed false dates of conception, disclosure, drawing, description, and reduction to practice, and then testified to the veracity of the same lies in an interference proceeding.
Systems,[10] SAAT attempted to defend with a claim of inequitable conduct, alleging Exergen was aware of two earlier patents that it did not cite to the examiner during prosecution.
The court opined that inequitable conduct is not a "magic incantation to be asserted against every patentee" by a "mere showing that art or information having some degree of materiality was not disclosed".
[11] One commentator remarked that this change has led to a "virtual alignment of inequitable conduct and Walker Process fraud that was accomplished by Therasense.