An applicant should keep in mind the duty of disclosure. The applicant has a duty to disclose all pertinent references of which they have knowledge at the time of patenting. The duty extends to each inventor named in the application; each attorney or agent who prepares or prosecutes the application; and every other person who is substantively involved in the preparation or prosecution of the application and who is associated with the inventor, with the assignee or with anyone to whom there is an obligation to assign the application.
Individuals having a duty of disclosure are limited to those who are "substantively involved in the preparation or prosecution of the application." This is intended to make clear that the duty does not extend to typists, clerks and similar personnel who assist with an application.
Note the duty applies only to individuals, not to organizations. For instance, the duty of disclosure would not apply to a corporation or institution as such. However, it would apply to individuals within the corporation or institution who were substantively involved in the preparation or prosecution of the application, and actions by such individuals may affect the rights of the corporation or institution.
The consequences of intentional nondisclosure can be devastating. Intentional nondisclosure of a material reference can result in a finding of inequitable conduct, which can render every claim in the patent and all subsequent continuations, divisionals, etc. unenforceable.
A patent attorney or agent who is involved in the inequitable conduct can lose his or her license to practice before the USPTO. Inequitable conduct cannot be cured through a reissue or re-examination of the application.
