Hewlett-Packard Co. v. Bausch & Lomb, Inc.

AMENDED ORDER RE AFFIRMATIVE DEFENSE OF INEQUITABLE CONDUCT

I. INTRODUCTION.

This action went to trial on April 5, 1988. The case involves a suit by plaintiff Hewlett-Packard Company (“HP”) for a judicial declaration that it has not infringed defendant Bausch & Lomb, Inc.’s (“B & L”) United States Reissue Patent No’. 31,684 (the “Yeiser reissue patent”). B & L has counterclaimed for infringement. In support of its position, HP has raised the affirmative defense of inequitable conduct. Specifically, HP contends that B & L committed inequitable conduct before the patent office in procuring the Yeiser reissue patent. This alleged inequitable conduct primarily consisted of the submission of two declarations and two affidavits in support of the reissue application which B & L knew (or absent grossly negligent conduct, should have known) contained blatantly false information.

Shortly before trial, HP filed a motion for summary judgment arguing that because the two affidavits submitted by B & L in obtaining the Yeiser reissue patent were false and were essential to the patent examiner’s ruling, the reissue patent is invalid. The motion was granted from the bench on March 18, 1988. The…