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Cutting Through Inequitable Conduct

Inventor wins big
In saw safety patent suit
Against Home Depot

The Federal Circuit has upheld a jury award of almost $24 million to an inventor of a radial saw guard used by Home Depot in Powell v. The Home Depot U.S.A..

By the early 2000’s, Home Depot spent more than $800,000 in compensation for injuries to employees using in-store radial arm saws to cut lumber for customers.  The company sought help solving this problem from Michael Powell, an independent contractor.

Powell designed a saw guard, and installed eight prototypes for Home Depot in 2004, at a cost of $2,000 each.  Home Depot then took the guard specs to another supplier who supplied the device to over 2,000 stores at a cost of about $1,295 each.

Powell filed patent number 7,044,039, for a “radial arm saw safety top,” in 2004 and the patent was issued in 2006.  He sued Home Depot for patent infringement in 2007 and prevailed after a jury trial.

Home Depot appealed, and the Federal Circuit affirmed claim construction, infringement, inequitable conduct, willfulness, and damages.

The appeals court also held that Powell’s claim was not barred due to inequitable conduct.

During prosecution of the patent, Powell had filed a “Petition to Make Special” (request for accelerated examination of the application) on the grounds of prospective manufacture of the devices.  When Home Depot did not, in fact, have him manufacture more devices after he created the prototypes, he failed to inform the Patent and Trademark Office (PTO) of this fact.

The Federal Circuit ruled:

Where, as here, the patent applicant fails to update the record to inform the PTO that the circumstances which support a Petition to Make Special no longer exist—that conduct does not constitute inequitable conduct. That is so because Mr. Powell’s conduct obviously fails the but-for materiality standard [of Therasense] and is not the type of unequivocal act, “such as the filing of an unmistakably false affidavit,” that would rise to the level of “affirmative egregious misconduct.”

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