PATENT, TRADEMARK & COPYRIGHT!

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1 A BNA s PATENT, TRADEMARK & COPYRIGHT! JOURNAL Reproduced with permission from BNA s Patent, Trademark & Copyright Journal, 80 PTCJ 799, 10/15/2010. Copyright 2010 by The Bureau of National Affairs, Inc. ( ) TRADEMARKS The authors examine several rulings that have shaped the standard for finding fraud on the Patent and Trademark Office, and they offer tips to trademark practitioners on how to avoid the risk of such findings. How to Avoid (Even Accidentally ) Committing Fraud on the PTO: Trademark Owners and Practitioners at Risk BY SCOTT E. ROGERS AND BRADLEY D. HERGOTT T he potential to commit fraud on the Patent and Trademark Office poses an enormous risk for trademark owners and practitioners much larger than one might expect. That is because a trademark The authors are attorneys at Scandaglia & Ryan, Chicago. practice regularly requires signing declarations and verified statements in support of trademark applications or in furtherance thereof, and if a client or attorney is not diligent and careful in preparing such declarations or statements, the Trademark Trial and Appeal Board or a federal court can cancel an entire registration as a penalty for fraud. Although the word fraud evokes a willful intent to deceive, the TTAB s rulings over the past seven years have demonstrated that trademark registrations may be COPYRIGHT 2010 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN

2 2 at risk for cancellation as the result of accidental errors (considered objective manifestations of a subjective intent to deceive). While the most recent cases have retreated from the harsher standard adopted in the Medinol 1 case in 2003, there are still open questions regarding the interpretation of the fraud standard, and the best practice requires attentiveness and open communication between practitioners and their clients. This article will examine several rulings that have shaped the standard for finding fraud on the PTO, and then identify the current pleading standards and best practices for clients and attorneys prosecuting trademarks. The Hard-Line Stance: Medinol. In 2003, the TTAB ruled in Medinol that applicants could inadvertently commit fraud on the PTO: if an applicant made a material statement that it knew or should have known was false, it constituted fraud under Medinol. The applicant in Medinol filed an application to register the mark Neurovasx for medical devices, namely neurological stents and catheters, claiming that the mark was used in connection with all goods on the application. As is customary, the PTO accepted the declaration on the application as true and registration issued. Medinol Ltd. filed a petition for cancellation, alleging the mark had not been used in connection with stents. The registrant answered that it had no further interest in continuing its registration in connection with stents, and requested partial cancellation of the registration. The TTAB, in a severe ruling, held that the registrant knowingly made a material misrepresentation, but for which the registration would not have issued, and that merely deleting the goods would not remedy the fraud on the PTO. The teeth in Medinol lies in its holding that the applicant (or an attorney signing the application and verifying that it is true) need not actually know that the applicant was making a false statement; it is enough that the applicant should have known. The appropriate inquiry is therefore not into the registrant s subjective intent, but rather into the objective manifestations of that intent.... Proof of specific intent to commit fraud is not required, rather, fraud occurs when an applicant or registrant makes a false material representation that the applicant or registrant knew or should have known was false. 2 Following Medinol, this new standard was strictly applied. In Orion Electric, 3 a Korean company included in its application goods (including video phones and telephones) that had never been used, sold, or promoted in the United States in connection with the subject mark. The applicant argued that the mistake was inadvertent, but the TTAB voided the application ab initio, holding that the applicant knew or should have known at the time it submitted its application, and later when it amended its identification of goods by deleting numerous items, that the mark was not in use on all of the 1 Medinol Ltd. v. Neuro Vasx Inc., Cancellation No , 67 USPQ2d 1205 (T.T.A.B. May 13, 2003). 2 Id. at Orion Electric Co. v. Orion Electric Co., Opposition No , 2004 WL (T.T.A.B. Mar. 19, 2004). goods listed upon publication, and thus, that its sworn statement in the application was materially incorrect. 4 In Hawaiian Moon, 5 miscommunication between an attorney and his client led to disastrous consequences. An application that listed the goods merely as clothing was amended by the attorney to include a variety of clothing items, many of which were never used by the applicant. The attorney then sent a statement of use to his client that declared the mark was used in connection with all of the goods identified in an amended application; the client who never received a copy of the amended application assumed the listed goods were appropriate and signed the statement of use. The TTAB ruled, based on Medinol, that the client should have known of the falsity of his statements and canceled the registration. In a similar case, Zodiac Spirits, 6 a company filed an application to register the trademark Zodiac in connection with spirits, namely distilled spirits, liqueur, and whiskey. Though the mark had never been used in connection with liqueur and whiskey, the company claimed that no fraud had been committed because the mark was still used with distilled spirits just not those two particular distilled spirits. The TTAB disagreed, and ruled that if an identification of goods includes both a broad product term and a specific product term which is encompassed by the broad product term, averring to the use of the specific goods to procure or maintain a registration when the mark is not in use with those particular goods is fraudulent. 7 In Standard Knitting, 8 the TTAB went even further, ruling that specific or actual intent is not material to the question of fraud as long as the applicant or registrant knew or should have known the statements were false. As with the other cases, the registrations were cancelled in their entireties for including extraneous items in the list of goods portion of the application. This case is noteworthy because of its departure from our typical understanding of what it means to commit fraud. Fraud is traditionally defined as an intentional perversion of truth or a false representation of a matter of fact which deceives and is intended to deceive. 9 It is extremely important for practitioners and trademark applicants and registrants to be aware when the TTAB imposes penalties for fraud even absent any finding regarding intent to deceive one of the traditional elements of fraud. In Herbaceuticals, 10 the TTAB made clear its expectations of attorneys: it is not enough to sign a statement of use on information and belief without making a sufficient inquiry into the truth of the statement. Xel Herbaceuticals owned six registrations for various permu- 4 Id. at *7. 5 Hawaiian Moon Inc. v. Rodney Doo, Cancellation No , 2004 WL (T.T.A.B. Apr. 29, 2004). 6 Zodiac Spirits Inc. v. Anil Mezini, Opposition No , 2008 WL (T.T.A.B. Feb. 14, 2008). 7 Id. at *5. 8 Standard Knitting Ltd. v. Toyota Jidosha Kabushiki Kaisha, Opposition No , 77 USPQ2d 1917 (T.T.A.B. Jan. 10, 2006). 9 See BLACK S LAW DICTIONARY, (5th Ed. 1979) (emphasis added). 10 Herbaceuticals Inc. v. Xel Herbaceuticals Inc., Cancellation No , 86 USPQ2d 1572 (T.T.A.B. Mar. 7, 2008) COPYRIGHT 2010 BY THE BUREAU OF NATIONAL AFFAIRS, INC. PTCJ ISSN

3 3 tations of its trade name. Herbaceuticals Inc. moved to cancel all six of the registrations based on fraud. The TTAB agreed that the petitioner had made a prima facie showing of fraud in the procurement of four of the registrations because statements in four of the applications regarding the use of the mark on the identified goods and services were materially false. The TTAB ruled that even if Xel Herbaceuticals attorney signed each of the statements of use based on information and belief, he was clearly in a position and under a duty to know the truth of the statements, or to inquire as to the truth of the statements if he did not know. The TTAB noted: statements under oath are made with a degree of solemnity requiring thorough investigation prior to signature and submission to the USPTO. 11 The TTAB further stated that if the Xel Herbaceuticals attorney inquired at all, his inquiries would appear to have been grossly insufficient. 12 The four registrations were canceled in their entireties because the attorney who filed the applications on information and belief knew or should have known that the marks were not used on all of the goods and services recited in those applications. The Stance Softens a Bit: G & W Laboratories and Zanella. In G & W Laboratories, 13 the registrant owned two registrations, and each identified goods within Class 5 (pharmaceuticals) and services within Class 35 (advertising and business). GW Pharma alleged fraud and moved to cancel the registrations in their entireties because no services had been performed under Class 35. After GW Pharma moved to cancel the registrations, G & W Laboratories deleted Class 35 from its registrations on its Section 8 filings (Section 8 requires an Affidavit of Use to be filed: (a) between the fifth and sixth years following the date of registration and (b) within the year before the end of every ten-year period after the date of registration). The TTAB made clear that fraud cannot be cured merely by deleting from the registration those goods or services on which the mark was not used at the time of the signing of a use-based application or Section 8 affidavit. 14 However, the TTAB also ruled that, in a multiple class registration, fraud as to one class would not subject the entire registration to cancellation. Rather, each class of goods or services in a multiple class registration must be considered separately when reviewing the issue of fraud, and judgment on the ground of fraud as to one class does not in itself require cancellation of all classes in the registration. 15 In Zanella, 16 four registrations were issued on applications for multiple goods, some of which were not used in connection with the marks. However, the registrant voluntarily corrected the identification of goods on its Section 8 (Use) and Section 15 (Incontestability) 11 Id. at Id. at G & W Laboratories Inc. v. GW Pharma Ltd., Opposition No , 89 USPQ2d 1571, 2009 WL (T.T.A.B. Jan. 29, 2009). 14 Id. at *2. 15 Id. at *3. 16 Zanella Ltd. v. Nordstrom Inc., Opposition No , 90 USPQ2d 1758, 2009 WL (T.T.A.B. May 13, 2009). affidavits. Later, in a cancellation proceeding based on fraud in the initial application, the TTAB ruled that the registrant s timely and proactive corrective action raised a genuine issue of material fact regarding whether the registrant had the intent to commit fraud. Thus, actions taken to correct false statements prior to any actual or threatened challenge to a registration create a rebuttable presumption that the registrant did not intend to deceive the PTO. If one waits, however, like the registrant in G & W Laboratories, until after a fraud claim is brought, it is too late. The Hard-Line Dissolves: In re Bose. Bose registered the mark Wave for a number of goods, including audio tape recorders and players. By 1997, Bose had phased out all sales of audio tape recorders and players, but in its 2001 renewal affidavit audio tape recorders and players were still listed in its statement of continued use. Cancellation proceedings were instituted and Bose s general counsel testified that he signed the affidavit, and believed the statements to be true, because Bose still repaired audio tape players and recorders and transported the repaired products back to its customers. The TTAB held that merely transporting a product back to an owner did not constitute use in commerce under the Lanham Act, and that it was unreasonable for the general counsel to believe that it did. The TTAB found that Bose committed fraud against the PTO by maintaining its registration and that the fraud could not be cured merely by deleting the specific goods from the registration. 17 The registration was canceled. Bose appealed. On appeal, the Federal Circuit ruled that the TTAB had consistently and correctly acknowledged that there is a material legal distinction between a false representation and a fraudulent one, the latter involving an intent to deceive, whereas the former may be occasioned by misunderstanding, an inadvertence, a mere negligent omission, or the like. 18 In other words, deception must be willful to constitute fraud. The Federal Circuit then addressed the Medinol opinion. The TTAB s emphasis on objective manifestations is appropriate to the extent that intent may often be inferred from the circumstances and related statements made. However, the Federal Circuit continued, by equating should have known of the falsity with a subjective intent, the Board erroneously lowered the fraud standard to a simple negligence standard. 19 The court confirmed that mere negligence is not sufficient to infer fraud or dishonesty, and even gross negligence does not of itself justify an inference of intent to deceive. A trademark is obtained fraudulently under the Lanham Act only if the applicant or registrant knowingly makes a false, material representation with the intent to deceive the PTO. The court ruled that subjective intent to deceive, however difficult it may be to prove, is an indispensable element in the analysis. Such intent may be inferred from indirect and circumstantial evidence, but the evidence must still be clear and convincing, and inferences 17 See Bose Corp. v. Hexawave Inc., Opposition No , 88 USPQ2d 1332 (T.T.A.B. Nov. 6, 2007). 18 In re Bose Corp., 580 F.3d 1240, 91 USPQ2d 1938, 1940 (Fed. Cir. 2009) (78 PTCJ 560, 9/4/09). 19 Id. at PATENT, TRADEMARK & COPYRIGHT JOURNAL ISSN BNA

4 4 drawn from lesser evidence cannot satisfy the deceptive intent requirement. The Federal Circuit reversed the TTAB s ruling and found that there was no fraud because even though there was a material misrepresentation the general counsel s false representation was occasioned by an honest misunderstanding or inadvertence without a willful intent to deceive. That is, Bose had not knowingly made a material misrepresentation with the intent to deceive the PTO. Thus, the standard after Bose appears to be that an applicant must: (1) knowingly make a (2) false material representation with (3) the intent to deceive the PTO in order to find fraud. In Enbridge, 20 the first TTAB decision following In re Bose, the applicant s president and CEO testified that the application inadvertently claimed that the mark was used in connection with the transmission of oil and gas through pipelines in ships, even though the applicant never even considered marine oil transport, let alone actually used the mark in connection with those services. The TTAB nonetheless ruled that the party opposing the registration failed to meet its burden under In re Bose of establishing that there was no genuine issue of fact that the applicant had an intent to deceive the PTO, and summary judgment was denied. Four statements stand out from the TTAB s decision illustrating the differences between how it proceeded under Medinol and how it would now proceed under In re Bose: s The standard for finding intent to deceive is stricter than the standard for negligence or gross negligence, and evidence of deceptive intent must be clear and convincing. 21 s [T]here is no fraud if a false misrepresentation is occasioned by an honest misunderstanding or inadvertence without a willful intent to deceive. 22 s Unless a party alleging fraud can point to clear and convincing evidence that supports drawing an inference of deceptive intent, it will not be entitled to judgment on a fraud claim. 23 s Any doubt must be resolved against the party making a claim of fraud. 24 Pleading Fraud on the PTO After In re Bose. In the wake of In re Bose, allegations of fraud may be pleaded on information and belief, but must include a statement of facts upon which the belief is reasonably founded, and must include an allegation of intent. 25 Specific intent is an element of any fraud claim and an allegation that a declarant should have known a material statement was false is not sufficient for a proper pleading Enbridge Inc. v. Excelerate Energy LP, Opposition No , 92 USPQ2d 1537 (T.T.A.B. Oct. 6, 2009) (79 PTCJ 14, 11/6/09). 21 Id. at Id. 23 Id. 24 Id. 25 See Asian and Western Classics B.V. v. Selkow, Cancellation No , 92 USPQ2d 1478 (T.T.A.B. Oct. 22, 2009) (78 PTCJ 801, 10/30/09). 26 See Qualcomm Inc. v. FLO Corp., Opposition No , 93 USPQ2d 1768, 2010 WL (T.T.A.B. Feb. 25, 2010). The elements for fraud that must be alleged, with particularity, and proven 27 are: s a false representation regarding a material fact; s the registrants (or applicants) knew or believed that the representation was false; s the registrant (or applicant) intended to induce or discourage action in reliance on the misrepresentation; s the PTO reasonably relied on the misrepresentation; and s damages proximately caused by such reliance (i.e., the PTO issued a registration, or otherwise acted, based on the misrepresentation). Anyone opposing a registration because the applicant had knowledge of a confusingly similar mark at the time its declaration was signed must allege that: (1) there was, in fact, another use of the same or a confusingly similar mark at the time the declaration was signed; (2) the other user s legal rights were superior to the applicant s; (3) the applicant knew the other user had superior rights; and (4) the applicant intended to procure a registration to which it was not entitled. 28 In light of the Federal Circuit s holding in In re Bose, the TTAB revisited its Herbaceuticals 29 ruling and found that the allegations that the registrant knew or should have known the marks were not used on all of the goods identified in the applications when it filed its statement of use was insufficient. The TTAB rescinded its previous order, but gave the cancellation petitioner leave to replead its fraud claim. Perhaps the most important ruling since In re Bose is Daimlerchrysler. 30 The cancellation petitioner alleged that the registrant submitted a false statement of use and submitted false statements in response to two office actions, representing that it was using the mark in commerce in connection with automobiles and structural parts. The petitioner specifically alleged that: (1) the registrant admitted it never used the mark in commerce with structural parts and automobiles; (2) the registrant made false representations to the PTO; (3) the registrant knew the representations were false; (4) the misrepresentations were knowingly made in order to procure the registration; (5) the PTO relied on the misrepresentations in issuing the registration; and (6) the PTO would not have issued the registration but for the registrant s false statements. For the first time since In re Bose, the TTAB ruled that the cancellation petitioner had sufficiently pleaded a fraud claim, including the requisite allegations of intent to deceive the PTO: We find the assertions... combining the references material misrepresentations knowingly made and to procure a registration... constitute an allegation of respondent s intent. That is, where a pleading asserts that a known misrepresentation, on a material matter, is made to procure a registration, the element of intent, indis- 27 See E. & J. Gallo Winery v. Quala S.A., Opposition No (T.T.A.B. Dec. 7, 2009). 28 See Qualcomm, 93 USPQ2d Herbaceuticals Inc. v. Xel Herbaceuticals Inc., Cancellation No (T.T.A.B. Feb. 25, 2010). 30 Daimlerchrysler Corp. v. American Motors Corp., Cancellation No , 94 USPQ2d 1086, 2010 WL (T.T.A.B. Mar. 25, 2010) COPYRIGHT 2010 BY THE BUREAU OF NATIONAL AFFAIRS, INC. PTCJ ISSN

5 5 pensable to a fraud claim, has been sufficiently pled. 31 We know after In re Bose that the standard for fraud requires more than mere negligence in making misrepresentations to the PTO. The most glaring open question, then, is whether a reckless disregard for the truth or falsity of a statement is sufficient for a finding of fraud. In its decision in In re Bose, the Federal Circuit explicitly left open the question of whether a reckless disregard for truth or falsity would satisfy the intent to deceive requirement. In rescinding its previous decision in the Herbaceuticals matter, the TTAB noted that the standard for finding intent to deceive is stricter than the standard for negligence or gross negligence, adding, still open is the question of whether a submission to the PTO with reckless disregard of its truth or falsity would satisfy the intent to deceive requirement. 32 But examining decisions prior to In re Bose, the TTAB may have given us guidance on which direction it will lean on this issue: s A registrant is charged with knowing what it is signing and failing to make an appropriate inquiry is a reckless disregard for the truth. 33 s Respondent s knowledge that its mark was not in use on about 100 of the approximately 150 identified items or its reckless disregard for the truth is all that is required to establish intent to commit fraud in the procurement of a registration. 34 s By failing to consult the application or Notice of Allowance [when executing the statement of use] to determine the goods listed in the application, yet being warned that the penalty for false statements in the statement of use is a fine or imprisonment or both, respondent had reckless disregard for the truth of the statements regarding those goods on which he had used the mark. 35 s [S]tatements under oath are made with a degree of solemnity requiring thorough investigation prior to signature and submission to the USPTO. 36 While we do not know for certain how the TTAB will rule on reckless disregard after In re Bose and fraud must be proved to the hilt with clear and convincing evidence prudence clearly dictates that attorneys act as though the TTAB will find that such recklessness supports a finding of fraud against the PTO. Best Practices as Attorneys. Of all the verified statements made to the PTO, statements of use are the ones most likely to lead to an allegation of fraud; and, more specifically, fraud is most often alleged when multiple goods and/or services are listed with a declaration that the mark is being used in connection with all of them. Though the list is not exclusive, these are the common verified statements of 31 Id. at *3. 32 Herbaceuticals, Cancellation No at 3, n Zanella, 2009 WL at *2. 34 J.E.M. International Inc. v. Happy Rompers Creations Corp., Cancellation No , 74 USPQ2d 1526, 2005 WL at *6 (T.T.A.B. Feb. 10, 2005). 35 Hawaiian Moon, 2004 WL at *4. 36 Herbaceuticals, 86 USPQ2d at 1577; see also Medinol, 67 USPQ2d 1025; and Standard Knitting, 77 USPQ2d fact that will be made to the PTO at some point in the application or post-registration process: s All the facts set forth in the application are true. s Applicant believes it is the owner of the mark. s No other person or entity has the right to use the mark in commerce in a manner likely to cause confusion or mistake. s The mark is in use in commerce. s The mark was first used at least as early as [DATE], and first used in commerce at least as early as [DATE], and is currently still in use in such commerce. s Applicant is using the mark in commerce on or in connection with the goods/services identified in the application. s The specimen shows the mark as it is used on or in connection with the goods or services. s Applicant believes it is entitled to use the mark in commerce. s Applicant has a bona fide intention to use the mark in commerce. s Applicant has a continued bona fide intention to use the mark in commerce. s Applicant has made certain efforts in order to use the mark in commerce. s The mark has been in continuous use in commerce for five (5) consecutive years after the date of registration. So how can you, as an attorney, avoid a claim of fraud being made against one your clients? There is plenty of case law that suggests attorneys are obligated to conduct a thorough investigation prior to signing any declaration on behalf of a client. Here are some tips to guide you through your investigation. As a practical matter, elements like reasonable reliance and but-for causation are going to be impossible to refute. Under current PTO procedures, once the PTO receives a properly executed declaration, the PTO does not challenge the validity of an applicant s statements. Simply put: if you make a representation to the PTO in order to procure a registration, the PTO will rely on that representation. The PTO relies on the threat of cancellation proceedings instituted by competitors and the ethical canons to which attorneys have sworn allegiance in order to ensure that only truthful statements are made to the PTO. If one can prove that a material misrepresentation was knowingly made to procure a registration (or something else), proving that the PTO would not have issued the registration (or otherwise acted) but for the false representations is a virtual certainty. 37 Most fraud claims hinge on four subject areas: (1) knowledge of any other person or entity having the right to use the mark; (2) bona fide intent to use the mark in commerce; (3) actual use of the mark in connection with specified goods and services; and (4) continuous use of the mark in commerce for five consecutive years. On other use, the Lanham Act does not mandate a pre-application search by one who seeks federal registration of a mark. 38 There are many good reasons to 37 See, e.g., Trademark Manual of Examination Procedure and See Money Store v. Harris Corp. Finance Inc., 689 F.3d 666, 671 (7th Cir. 1982). PATENT, TRADEMARK & COPYRIGHT JOURNAL ISSN BNA

6 6 conduct a trademark search, but under the standards enunciated in In re Bose, the lack of a trademark search report may not constitute evidence of intent to deceive the PTO. Rather, clients should be asked if they are aware of any other person or entity using the mark, or a similar mark, in connection with the same or similar goods or services. If they answer affirmatively, investigate whether the competing use is likely to cause confusion. If there is a likelihood of confusion, and if that fact is not brought to the attention of the PTO at the time an application is filed, the ensuing registration may be at risk for cancellation based on fraud. On bona fide intent, the PTO will not evaluate the good faith of an applicant in the ex parte examination of applications. Generally, the applicant s sworn statement of a bona fide intention to use the mark in commerce is sufficient evidence of good faith in the ex parte context. The PTO will only make an inquiry if the evidence of record clearly indicates that the applicant does not have a bona fide intention to use the mark in commerce. Remember, bona fide intent means actual intent to use a mark, and not merely the intent to reserve a right in a mark. Filing applications to reserve rights in multiple marks when in fact the intent is to use only one of the multiple choices may not qualify as bona fide intent. When filing for extensions of time, clients should be asked if they continue to have a bona fide intent to use the mark and, if appropriate, what steps have been taken to adopt and begin using the mark. Use in commerce means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. Under the Lanham Act, a mark is be deemed to be in use in commerce: (1) on goods when (a) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and (b) the goods are sold or transported in commerce, and (2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one state or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services. Ask how and when the mark was first used, how and when it was first used in commerce, and whether it is used in connection with all of the listed goods and services. This is the issue that will form the basis for most claims of fraud against the PTO, and it will happen most often when multiple goods or services are listed. 39 For Section 15 continuous use, it is not enough that the mark is currently being used; that use would only satisfy a Section 8 declaration of current use. When in doubt, always ask the client to provide records of continuous use. For attorneys, the prudent course is to act as if Medinol were still controlling law. Even though In re Bose relaxed the fraud standard, there are plenty of skilled attorneys who could convince the TTAB or a court that an innocent mistake was an intentional deception. Maintain clear, open, and frank lines of communication with the client. When filing an application for multiple classes or multiple goods or services, keep a list of the individual goods or services and also keep evidence that the mark has been used in connection with each and every one of them. Before you file a renewal or incontestability declaration, investigate whether the mark is still being used in connection with all of the goods or services listed in the registration certificate. If you discover an error, immediately take steps to correct it. And remember Herbaceuticals the TTAB dismissed the cancellation actions because the complaint only alleged that the registrant knew or should have known that it was not using the marks in connection with all of the goods. But, in its original opinion, the TTAB found that the attorney was in a position to know the truth and was clearly in a position to inquire as to the truth of the statements. And there is ample authority to support the proposition that statements under oath are made with a degree of solemnity requiring thorough investigation prior to signature and submission to the PTO U.S.C COPYRIGHT 2010 BY THE BUREAU OF NATIONAL AFFAIRS, INC. PTCJ ISSN