> So yes, it's the expectation of the courts that people will continually monitor granted patents and appeal them as necessary.

I dunno about that. My sense is that a patent owner's counsel would not try to argue that the accused infringer had a general duty to monitor pending applications or issued patents. The argument would be, instead, that the circumstances suggest that the prior art in question wasn't so good after all.

Keep in mind that jurors are usually non-technical. Therefore, patent litigators try hard to find understandable indirect- or circumstantial evidence that can get the message across to the jurors. EXAMPLE: If someone walks into the courtroom in a dripping-wet raincoat, that's indirect evidence of rain. EXAMPLE: Widespread imitation of an invention, or praise for it, is regarded as indirect evidence of nonobviousness.

In this hypothetical, the patent owner's counsel argues that the defendant's failure to bring the supposedly-killer prior art to the attention of the patent examiner is indirect evidence. Of what? That the prior art wasn't so good after all, and that the defendant is trying to put one over on the jurors.

Wow. This goes to show you how easy it is to overestimate what you know - my patent experience is all about translating stuff from German (or French) into English, so now that I think about it, all the appeal documentation I've ever seen has been before the European patent appeals court. The thought of defending a patent in front of a "jury of your peers" is frankly something I never even thought of.

The insidiousness of ignorance...