760 F.2d 1293
225 U.S.P.Q. 1099
KORODY-COLYER CORP., Plaintiff/Appellee,v.GENERAL MOTORS CORP., Defendant/Appellant.
Appeal No. 84-1712.
United States Court of Appeals,Federal Circuit.
May 2, 1985.

Warren E. Finken, General Motors Corp., of Detroit, Michigan, argued for appellant.  With him on the brief was Dean L. Ellis, Detroit, Mich.
John Joseph Hall, of Los Angeles, Cal., argued for appellee.  With him on the brief was Gene W. Arant, Los Angeles, Cal.
Before MARKEY, Chief Judge, DAVIS, Circuit Judge, and SKELTON, Senior Circuit Judge.
MARKEY, Chief Judge.


1
Appeal from a judgment of the United States District Court for the Central District of California holding United States Patent No. 3,555,972 invalid for obviousness and for inequitable conduct during prosecution, and awarding reasonable attorney fees and costs to Korody-Colyer Corporation.  We affirm.

Decision

2
Korody-Colyer Corporation sued for declaratory judgment that Patent No. 3,555,972 is invalid.  One basis for the appealed judgment is the district court's determination that the patent is unenforceable because of inequitable conduct during prosecution of the application in the United States Patent and Trademark Office (PTO).1   That determination was based on the court's Findings that:  (1) the applicant was fully aware of certain prior art, and of its materiality, before and during prosecution;  (2) a reasonable examiner would have considered that art important in determining whether to allow the application to issue as a patent;  (3) the applicant did not disclose that art to the PTO, though its internal correspondence referred to part of that art as "most relevant";  (4) the non-disclosed prior art references were more pertinent than those considered by the examiner during prosecution;  and (5) the failure to disclose that art, if not deliberate concealment, was at the very least a calculated recklessness with regard to the truth.  In its Conclusions the court further stated that the non-disclosure was a "substantial cause" and "crucial factor" in obtaining the patent and that it showed a "culpable state of mind".   See Argus Chemical Corp. v. Fibre Glass-Evercoat Co., Inc., 759 F.2d 10 (Fed.Cir.1985).


3
On consideration of the briefs and the oral argument, and a careful review of the record, we ascertain, in light of the foregoing, no basis on which the appealed judgment may be reversed.  Appellant argues strenuously that the non-disclosed art was no more pertinent than that before the examiner, but has not convinced us that the district court's fact findings to the contrary are clearly erroneous.  Rule 52(a), Fed.R.Civ.P.  Because the holding of unenforceability in view of inequitable conduct fully supports the judgment, it is unnecessary to discuss the issue of obviousness under 35 U.S.C. Sec. 103.


4
The award of reasonable attorney fees and costs is a matter committed to the discretion of the district court.  It may be overturned only on a clear showing that that discretion has been abused.    Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1548-49, 221 USPQ 1, 8 (Fed.Cir.1984) and cases there cited.  A search of the record reveals no basis on which an abuse of discretion may be found in this case.


5
Accordingly, the judgment appealed from is affirmed.


6
AFFIRMED.



1
 The district court's Conclusion 4 was that "fraud on the Patent Office" renders the patent "invalid".  This court has said that "inequitable conduct" more properly describes what has been called "fraud on the Patent and Trademark Office" and that such conduct renders a patent "unenforceable", rather than "invalid".    J.P. Stevens & Co. v. Lex Tex Ltd., Inc., 747 F.2d 1553, 1559, 223 USPQ 1089, 1092 (Fed.Cir.1984)


