BUT-FOR MATERIALITY

BUT-FOR MATERIALITY

but-for materiality. Patents. In an analysis of allegedly inequitable conduct, a test for determining the materiality of withheld information by assessing whether the withheld information, if disclosed, would have resulted in a finding of unpatentability. ? Under this test ¡ª also called the objective but-for test ¡ª the issue is whether the patent would have issued if not for the misconduct of the applicant. By contrast, under the subjective but-for test, the issue is whether the misrepresentation caused the examiner to issue the patent. Although both tests have been applied by the courts, the Federal Circuit has rejected the but-for materiality test in favor of the materiality test codified in 37 CFR ¡ì 1.56. ¡ª Also termed objective but-for test. [Cases: Patents 97. C.J.S. Patents ¡ì¡ì 135¨C138, 145, 178.]
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