Intellectual Property Law

Chapter 18 Case Study Answers

Case Study: Fit Forever intends to sue a competitor, Fit Club Inc., for infringement of Fit
Forever’s patented water bottle. Fit Forever is concerned that if it sues Fit Club, Fit Club
will allege that Fit Forever’s patent is invalid because Fit Forever did not disclose all
prior art to the USPTO when it applied for the patent.

Activities: What might Fit Forever do to strengthen its patent before it sues Fit Club?
What fees might Fit Forever incur?

Fit Forever should request a supplemental examination of the patent to
consider the information. Under the supplemental examination procedures, a
patent shall not be held unenforceable on the basis of information that was
not considered in a prior examination of a patent if it is considered during a
supplemental examination. This has the effect of “curing” or “cleansing” Fit
Forever’s previous omission so that Fit Club cannot raise it in later litigation.
As of November 1, 2015, the fee to file a request for supplemental
examination is $4,400/$2,200/$1,100 if a reexamination is ordered as a result
of supplemental examination, the fees are $12,100/$6,050/$3,025.