I’m struggling a bit to understand this new section 35 USC 257:
(1) IN GENERAL.—A patent shall not be held unenforceable on the basis of conduct relating to information that had not been considered, was inadequately considered, or was incorrect in a prior examination of the patent if the information was considered, reconsidered, or corrected during a supplemental examination of the patent. The making of a request under subsection (a), or the absence thereof, shall not be relevant to enforceability of the patent under section 282.
I think all it is saying is that there are no consequences for the patent owner submitting the request itself. The second sentence says this pretty clearly. The first sentence only covers the cases where there is a supplemental examination. Since the only way that wouldn’t happen (no more than 3 months later) is when the Director decides that the information raises no substantial question of patentability; I guess in that case it is obviously still enforceable.
I think it only leaves the question of enforceability unclear for the three month period. I think.
Now I get it: Federal Register Vol 77 No 157 stated that “supplemental examination is designed to preempt allegations of inequitable conduct being raised as a defense during patent litigation”. So I just misunderstood conduct in 35 USC 257 – that means inequitable conduct. They also talk about “material fraud” being narrower in scope than inequitable conduct, taking actual fraud into the criminal realm and out of the patentability question.