Alfred T. Giuliano v. SanDisk is a non-precedential case decided on July 27, 2017 on appeal from the Northern District of California. There, after Plaintiffs brought a Walker Process antitrust class action against SanDisk, the district court granted summary judgment in favor of SanDisk because the record did not show evidence sufficient to raise a triable issue on SanDisk’s intent to deceive the PTO despite Plaintiffs’ argument that undisclosed prior art references by Dr. Richard Simko (“Simko references”) were material and withheld with intent to deceive the PTO (regarding the ’338 and ’517 patents). Plaintiffs appealed.
The Federal Circuit affirmed the summary judgment of no Walker Process antitrust violation.
“To overcome summary judgment, a Walker Process claimant must present evidence showing that the patentee obtained a patent through actual fraud upon the PTO, which requires showing intent and materiality. “The misrepresentation or omission alleged to be fraudulent must evidence a clear intent to deceive the examiner and thereby cause the PTO to grant an invalid patent.”
Plaintiffs did not bring sufficient evidence for a reasonable juror to find that SanDisk intended to deceive the PTO. Plaintiffs argued that “(1) SanDisk hired Dr. Simko as a consultant in the ‘338 patent reexamination proceedings, which took place at the same time as the ‘517 patent application; (2) SanDisk cited the Simko references in a related patent application … a few years prior to the ‘338 patent reexamination and ‘517 patent application; and (3) SanDisk had entered the Simko references into a searchable database created specifically for identifying relevant prior art.”
As to the first argument, the record did not show that Dr. Simko was hired as a consultant for the ’338 patent reexamination. As to the second argument, the related patent where Simko was cited does not claim priority to either the ’338 or the ’560 patent. Nor is it a parent, continuation, continuation-in-part, or divisional application of those patents. “Instead, all three patents have one inventor in common.” Plaintiffs did not submit “any testimony or evidence explaining how, other than the overlap of one inventor,” the other patent citing the Simko references is “related” to the ‘338 and ‘517 patents. Further, the Simko patent’s prosecution history “reveals no information on why the Simko references were cited.” Plaintiffs “has not pointed to any evidence showing that when SanDisk cited the Simko references, it knew of the specific information in the Simko references alleged to be material to the ’338 and ’517 patents.”
Lastly, the fact that SanDisk entered the Simko references into a database for identifying relevant prior art, considering the totality of the circumstances, does not create a triable issue of material fact on intent to deceive. The fact that SanDisk entered the references in the database and cited the references in the other patent does now sufficiently show that SanDisk intended to deceive the PTO by not disclosing the references when prosecuting the ’338 and ’517 patents.
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