DH Technology, Inc. v. Synergystex International, Inc.

OPINION AND ORDER

In this action, plaintiff DH Technology, Inc. (“DHT”) sues defendant Synergystex International, Inc. (“Synergystex”) for patent infringement. The parties have both moved for summary judgment on the issue of whether United States Patent 5,115,493 (the “’493 patent”) is unenforceable because of DHT’s inequitable conduct in fraudulently paying a small entity issue fee. For the reasons hereinafter set forth, the Court grants summary judgment for Synergystex without reaching the inequitable conduct issue because, even if DHT’s payment of an improper small entity issue fee was an error in good faith, it is now too late to correct the error. The Court denies summary judgment for DHT, and dismisses the action with prejudice.

I.

On October 18, 1991, the Patent and Trademark Office (“PTO”) mailed a Notice of Allowance and Issue Fee Due (“Notice”) for the ’493 patent, entitled “Continuous Laser Printing for Printing Over Page Boundaries,” to applicant Ivan M. Jeanblanc (“Jeanblanc”). (Synergystex’s Mem. of P. & A in Supp. of Renewed Mot. for Summ. J. that the ’493 Patent is Unenforceable Because of Inequitable Conduct (“Renewed Motion”), Ex. 5.) The Notice stated:

HOW…