Speed increases likelihood that petitioners argue a patent should be invalid---turns case alone.

The pre-examination search and ESD requirements create three practical problems for inventors: (1) they increase the legal fees for prosecuting anapplication; (2) they push the applicants to narrow the scope of their claims at an early stage; and (3) they render any patents that issue out of this program potentially subject to a greater risk of unenforceability. The third problem has been most troubling to applicants because “[e]ach individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the [Patent] Office, which includes a duty to disclose to the [Patent] Office all information known to that individual to be material to patentability.”102 The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”), which has exclusive nationwide jurisdiction over appeals from all district court cases arising under the patent laws,103 has made clear that a breach of this duty during the prosecution of a patent application constitutes “inequitable conduct” and renders all the claims of the patent unenforceable for the life of the patent.104 Litigating parties seeking to render a patent unenforceable may argue that, among other things, the pre-examination search was insufficient, the applicant did not submit all relevant prior art to the PTO, or the applicant mischaracterized the prior art.105 Thus, patent practitioners have been concerned that the expediency of the revised Accelerated Examination program may open them up to a higher legal risk of having the patent rendered invalid in subsequent litigation. It is too early to know whether recent judicial and legislative actions taken to limit the availability of inequitable conduct claims will affect the popularity of the revised Accelerated Examination program.106