Full opinion text
OPINION SUE L. ROBINSON, District Judge. I. INTRODUCTION On December 2, 1996, plaintiff The Dow Chemical Company (“Dow”) filed this action against defendants Exxon Corp. and Exxon Chemical Patents, Inc. (“ECPI”) (collectively “Exxon”), alleging violations of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and state law. (D.I.2) Specifically, Dow alleges that Exxon, through a pattern of mail and wire fraud, made fraudulent misrepresentations to the Patent and Trademark Office (“PTO”) in order to dominate and control the market for polyethylenes made using single-site, metallocene catalysts, and thereby injured Dow. (D.I.2) The court has jurisdiction over plaintiffs RICO claims pursuant to 18 U.S.C. § 1964 and 28 U.S.C. § 1338 and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367. On March 29, 1997, defendants filed a motion to dismiss, or alternatively to stay, plaintiffs complaint on the grounds that the court lacks subject matter jurisdiction. (D.I.34) Defendants also moved to dismiss plaintiffs complaint for failure to state a claim on which relief may be granted. (D.I.34) The court heard oral argument on defendants’ request on November 17, 1997. (D.I.67) For the reasons that follow, defendants’ motion to dismiss shall be granted. II. BACKGROUND A. The Technology Both Dow and Exxon are involved in the manufacture and sale of polyethylene. Polyethylene is a widely used plastic, the worldwide market for which is enormous. To create polyethylene, a catalyst is combined with ethylene and an optional comonomer to form a polymerization reaction. There are four types of polymerization processes: gas-phase, slurry, solution, and high pressure. Regardless of the type of polymerization process employed, the result is the formation of polyethylene pellets, which are sold to intermediate-level fabricators who use the pellets to produce plastic articles such as films, sheets, fibers, and blends. These intermediate-use products are then used to produce end-use products such as disposable diapers, car bumpers, and food storage bags. Polyethylenes made using single-site catalysts exhibit particularly desirable traits and, as a result, are employed in a variety of end-use products. One such single-site catalyst is a metallocene catalyst. These catalysts have “as one component, a metallocene metal complex having one or more cyclopentadienyl groups (substituted or unsubstituted) attached to a transition metal atom, such as titanium or zirconium.” (D.I. 2, ¶ 5 n. 1) Exxon began commercial production of poly-ethylenes using metallocene catalysts in 1991. It calls its single-site catalyst technology “EXXPOL Technology” and markets the polyethylene produced thereby under the tradename EXACT®. Dow, on the other hand, began commercial production of polyethylene using metallocene catalysts in 1993. It calls its technology “INSITE® Technology” and markets the polymers produced thereby both directly and through a joint venture with E.I. DuPont de Nemours (DuPont Dow Elastomers L.L.C.) under the tradenames AFFINITY®, ENGAGE®, ELITE®, and NORDELL®. B. The Complaint In its complaint, Dow alleges that Exxon has set out to dominate the market with respect to polyethylenes produced using single-site catalysts. (D.I.2, ¶ 11) In particular, Dow contends that Exxon has targeted Dow’s INSITE® Technology. (D.I.2, ¶11) In order to further its objective, Dow contends that Exxon has institut[ed] a deliberate strategic objective fraudulently to obtain and assert patents and technology rights in a manner calculated to (i) disrupt and take business of competitors, including Dow; (ii) take, destroy or devalue the intellectual property rights of competitors, including Dow; (iii) threaten competitors, including D.ow, and their actual and potential customers; (iv) create confusion among Dow’s customers about their freedom to use INSITE® Technology polymers; and (v) create a misperception that a license from Exxon is required to manufacture polyethylenes using any single-site catalyst, including Dow’s. (D.I.2, ¶ 12) According to Dow, “a defined group of experienced Exxon in-house attorneys and outside counsel (all of whom are specialists in patent law) engaged in fraudulent conduct before the PTO to acquire or assert patent rights.” (D.I.2, ¶ 15) Specifically, Dow details seven allegedly fraudulent schemes undertaken by Exxon with the express objective of “attaining] dominance and control over the polyethylene business, and especially the business for polyethylenes produced using single-site catalysts.” (D.I.2, ¶ 15) The combination of these schemes, Dow contends, form a pattern of racketeering activity under 18 U.S.C. § 1961(1), (5). (D.I.2, ¶ 186) Dow alleges that Exxon has committed 41 predicate acts of mail fraud beginning in November 1988 and continuing through at least July 1996 in furtherance of its scheme to defraud: (i) by mailing to the PTO documents and papers containing fraudulent misrepresentations and fraudulent omissions of material fact designed to obtain issuance of patents; and (ii) by mailing to Dow and the PTO documents containing fraudulent misrepresentations designed to provoke and maintain interference proceedings against Dow and to prevent Dow from peacefully enjoying the valid patent rights it has obtained as a reward for its intensive research and development efforts. (D.I.2, ¶¶ 191,194) 1. Exxon’s First Allegedly Fraudulent Scheme (Scheme 1) Initially, Dow alleges that Exxon fraudulently procured U.S. Patent No. 5,405,922 (“the ’922 patent”), covering a condensed mode gas-phase polymerization' process for producing polyethylene using a metallocene catalyst. (D.I.4, Ex. 9) Specifically, Dow contends that Exxon attorney, “A”, knowingly misrepresented the prior art to the PTO examiner. In order to distinguish the ’922 patent from the prior art, and thereby overcome the PTO’s rejection of the pending claims, EA-A made the following assertion: Thus, it was surprising that a metallo-cene catalyst[ ], being soluble in hydrocarbon solvents, would polymerize olefins in a condensed mode process which utilizes a hydrocarbon solvent as a condensable inert. In a gas-phase operating in a non-condensed mode, should a hydrocarbon be used, it is in a gaseous state and by definition, cannot solubilize a metallocene catalyst. In essence, based upon the prior art disclosure, one of ordinary skill in the art would have expected that there was nothing to be gained but much to be lost in the use of a metallocene catalyst in a condensed mode process using as a condensa-ble inert a material in which the metallo-cene is soluble. Thus, it is respectfully submitted that there is no[ ] motivation for using a metallocene catalyst in a condensed mode process. (D.I.4, Ex. 13 at 5) Dow contends that EA-A knew at the time he made the statement to the PTO that the catalyst was not soluble, such knowledge coming “from express statements or teachings in Exxon’s own prior patents and patent applications, including two Exxon patents EA-A had listed in the ’922 patent specification itself — U.S. Patent Nos. 4,808,561 [(D.I.4, Ex. 14)] and 5,240,894 [ (D.I.4, Ex. 15) ].” (D.I. 2 at 14) All of these references, or a counterpart thereof, were cited in the specification of the ’922 patent application as describing “methods of supporting the catalyst of this invention.” (D.I.4, Ex. 9, col.5, Ins.25-37) The examiner initially refused to accept EA-A’s contentions that there was no motivation for using the metallocene catalyst in the prior art. (D.I.4, Ex. 21 at 8) However, after EA-A agreed to limit all of the independent claims in the application to a silica-supported metallocene catalyst, the examiner allowed all of the pending claims. In his Statement of Reasons for Allowance, the PTO examiner adopted EA-A’s conclusion with regard to the prior art’s characterization of metallocene catalysts: Thus, one of ordinary skill in the art would recognize [based upon the prior art] that metallocene catalysts, whether or not they are supported, are soluble in a hydrocarbon solvent____ One skilled in the art would not have expected metallocene catalysts to remain on the support in an amount sufficient to produce a desired polymer. (D.I. 4, Ex. 18 at 2) The examiner concluded that “applicantsf] unexpected use [of] a supported metallocene catalyst,” in combination with previously submitted amendments to the claims, rendered the claims allowable over the prior art. (D.I.4, Ex. 18 at 2-3) The ’922 patent issued on April 11, 1995. Dow contends that Exxon has used the ’922 patent “in a manner that benefitted its competitive position to the detriment of its competitors, including Dow.” (D.I.2 at 15) Specifically, Dow points to (1) Exxon’s conversion of a polyethylene plant to employ the ’922 technology (D.I.4, Ex. 5 at 7, Ex. 19) and (2) the Exxon-Union Carbide joint venture which, if it succeeds, according to Dow, will enable Exxon to dominate the production of poiyethylenes using single-site catalysts by gas-phase process technology. (D.I.2, ¶ 29) Moreover, Dow contends that “the existence of the ’922 patent [ ] has deterred and precluded competitors, including Dow, from developing similar gas-phase process technology, and from using this process to commercially produce polyethylene.” (D.I.2, ¶30) Dow avers that Exxon’s statement in a trade journal that the ’922 patent was “an extremely broad and fundamental patent ... covering] any metallocenes in any gas-phase operations in condensed mode” (D.I.4, Ex. 10; see also Ex.' 11 at 4) indicated Exxon’s intent to assert the 1922 patent against anyone who attempted to develop and use gas-phase process technology using a single-site catalyst. (D.I.2, ¶ 30) Consequently, Dow asserts, the ’922 patent was a “substantial factor” in delaying Dow’s efforts to consummate a business venture with BP Chemicals, Ltd. (“BP”) for the production of poiyethylenes using gas-phase process technology and single-site catalysts. On May 21, 1996, BP filed a request for reexamination of the ’922 patent with the PTO, asserting that the claims of the ’922 patent are, inter alia, obvious over the prior art. (D.I.4, Ex. 21) In its request, BP contended that the sole basis for allowance of the ’922 patent was the examiner’s erroneous acceptance of EA-A’s assertion regarding the solubility of the metallocene catalyst. (D.I. 4, Ex. 21 at 9-10) BP argued that, contrary to EA-A’s assertion, one skilled in the art at the time of the invention would have known that “supported metallocene catalysts of the type used in the ’922 patent would not undergo leaching of the metallo-cene catalyst from the support by the hydrocarbons used as the dew point increasing components in a condensed mode gas phase polymerization.” (D.I. 4, Ex. 21 at 10) The request for reexamination was granted on July 23, 1996. On October 17, 1996, the patent examiner rejected all of the claims of the ’922 patent, stating that “one of ordinary skill in the art would not believe that the solubility of the silica supported metallo-cene catalysts would be a problem in a condensed mode fluidized bed polymerization process.” (D.I. 4, Ex. 22 at 4) On December 27, 1996, Exxon filed a response in the reexamination disputing the examiner’s findings. (D.I.36, Ex. 3) On March 5, 1997, BP filed a second request for reexamination of the ’922 patent, contending that Exxon’s December 27, 1996 response sought to raise new bases for pat-entability of the ’922 patent claims. (D.I.57, Ex. 23) Specifically, BP argued, inter alia, that Exxon’s “new ‘fouling’ argument” did not support patentability over the prior art because “one skilled in the art would not have expected a metallocene catalyst to be extracted from its support under condensing mode conditions.” (D.I. 57, Ex. 23 at 14-18) This request for reexamination was granted on April 16, 1997, and it was consolidated with the first. (D.I.57, Ex. 24) 2. Exxon’s Second Allegedly Fraudulent Scheme (Scheme 2) The second allegedly fraudulent scheme involves Exxon’s U.S. Patent No. 5,084,534 (“the ’534 patent”), covering a process for the polymerization of ethylene at elevated temperature and pressures using an alumox-ane/metallocene catalyst system in which the ratio of aluminum in the alumoxane to the transition metal in the metallocene is in the range of 1000:1 to 0.5:1. (D.I.4, Ex. 23) Dow contends that Exxon’s attorney “B” made fraudulent representations to the PTO during prosecution of the ’534 patent, and that these representations induced the PTO to issue the ’534 patent. (D.I.2, ¶¶ 35-67) On November 23,1987, the patent examiner initially rejected claims 1-17 of the ’534 patent application as, inter alia, obvious over the prior art. (D.I. 4, Ex. 24 at 3) Specifically, in this regard the patent examiner stated that [i]t would be obvious to use the claimed aluminum to transition metal ratio because all the secondary references teach these ratios---- The productivities of the claimed process are not unexpected in view of the disclosure[s] of [the prior art]. (D.I. 4, Ex 24 at 3) In response to this rejection, EA-B represented to the PTO that the catalytic efficiency, measured interms of catalytic productivity and activity, of the ’534 patent process was “clearly unexpected and unpredictable” from the prior art. (D.I. 36, Ex. 5 at A187) EA-B characterized the prior art as demonstrating that there is an increase in productivity and activity of the catalyst with increasing aluminum-to-metallo-cene ratio. (D.I. 36, Ex. 5 at A187) Thus, EA-B asserted, it would not be obvious to one of ordinary skill in the art that “at high temperatures and pressures one would obtain significantly improved catalytic produc-tivities with the low aluminum-to-metallocene ratios” taught in the ’534 patent. (D.I. 36, Ex. 5 at A188) On June 10, 1988, the patent examiner entered a final rejection of the claims on the ground that the claims were obvious in light of the prior art. (D.I. 4, Ex 27) EA-B requested reconsideration of the examiner’s decision, arguing, inter alia, that what applicant has shown in [the] instant application is that through the use of a very low aluminum to metallocene ratio, one obtains very high productivities in a high pressure, high temperature polymerization process ____ [I]t is demonstrated that homogeneous systems having low aluminum to metallocene ratios obtain very poor catalyst productivity and in many instances show no polymerization activity. (D.I.4, Ex. 110) The request was denied. Subsequently, Exxon appealed the decision of the patent examiner to the PTO Board of Patent Appeals and Interferences (“the Board”). (D.I.4, Ex. 29) In the appeal, EA-B stated that the crux of Exxon’s invention was the process for the high temperature and high pressure polymerization of high molecular weight polyolefins which employs a metal-locene-alumoxane catalyst characterized by low molar ratios of aluminum: transition metal (A1:M) (D.I. 4, Ex. 29 at 7) (emphasis in original). In distinguishing the prior art, EA-B argued that the primary reference cited by the examiner exemplified a molar ratio of aluminum to metal of 2500:1, a ratio far in excess of that disclosed in the patent application. (D.I. 4, Ex. 29 at 9; D.I. 4, Ex. 113 at 2-8) In comparing the catalytic efficiency of the prior art with Exxon’s invention, EA-B measured the catalytic efficiency of the prior art based on catalytic activity, whereas he measured the catalytic efficiency of the 534 process in terms of catalytic productivity. (D.I.4, Ex. 29) Based upon his calculations, EA-B argued that all of the secondary references demonstrate an increase in activity with an increase in aluminum:metal ratio and thus would not render Appellants’ claimed invention of high productivity with low aluminum:metal molar ratio obvious. (D.I. 4, Ex. 29 at 17) (emphasis added). Dow contends that, based on his prior patent prosecution experience, EA-B knew that his representations to the PTO were fraudulent. Dow avers that EA-B knew the conversion number he used to calculate the aluminum to metal ratio in the primary reference was inaccurate and would inflate the ratio nearly three-fold. (D.I.2, ¶¶ 51-53). In addition, Dow contends that EA-B knew how to measure catalytic efficiency, and thus his “decision to measure catalyst efficiency in two different ways and then represent they were measured the same way was intentional and deliberate.” (D.I.2, ¶ 45) According to Dow, “[h]ad [EA-B] used the same method to measure the catalyst efficiency of the 534 process and the prior art process, no difference in polymer production efficiency would have appeared. ... and the 534 patent would not have issued.” (D.I.2, ¶ 46) In April 1991, the Board reversed the examiner’s rejection, noting that the weight of t[he] evidence is such that we are constrained to agree with appellants’ position that the evidence of the criticality of using lower ratios of aluminum to transition metal found in the working examples summarized in Table III of appellants’ specification amounts to evidence of unob-viousness sufficient to outweigh that evidence of obviousness. (D.I. 4, Ex. 30 at 3) The Board adopted EAB’s characterization of the primary prior art reference stating that its “working examples ... all illustrate the use of very high aluminum to transition metal ratios.” (D.I. 4, Ex. 30 at 3) The 534 patent issued on January 28, 1992. Dow contends that the existence of the 534 patent has deterred Exxon’s competitors, including Dow, from using single-site catalysts in combination with high temperature, high pressure process technology to produce poly-ethylenes. (D.I.2, ¶ 62) According to Dow, the only way competitors can safely (i.e., avoid a potential suit for infringement) employ such technology is by paying Exxon for a license, a cost Exxon need not incur. (D.I.2, ¶¶ 62-63) Thus, Dow contends, Exxon is in a position by virtue of the 534 patent to receive income whenever anyone uses the 534 patent technology and to achieve a greater profit margin from the sale of its polyethylene products. (D.I.2, ¶¶ 63) On October 5, 1994, Dow filed a request for reexamination of the 534 patent, asserting that its claims are anticipated by and obvious over the prior art. (D.I.4, Ex. 31) In its request, Dow questioned Exxon’s method of calculating catalytic activity, arguing that traditionally catalytic activity is measured in terms of the quantity of metallocene or transition metal in the catalyst, not total catalyst as Exxon employed. (D.I. 4, Ex. 31 at 13 — 16) According to Dow, recalculation of the 534 patent data using the traditional method of calculation reveals the same effect seen in the prior art — increasing activity with increasing aluminum to metal ratios. (D.I. 4, Ex. 31 at 15, 21-29) In addition, Dow asserted that recalculation of catalytic activity with changing aluminum to metal ratios on the basis of total catalyst in the prior art examples reveals that catalytic activity increases with decreasing aluminum to metal ratios, and thus, when properly compared to the results of the 534 patent, the effect claimed by Exxon is apparent in the prior art. (D.I. 4, Ex. 31 at 15, 21-29) Dow also alleged that Exxon intentionally miscalculated the aluminum to metal ratio exemplified in the primary reference; according to Dow, the ratio, correctly calculated, falls within the range claimed by Exxon in the 534 patent. (D.I. 4, Ex. 31 at 17-21) Dow’s request for reexamination was granted in December 1994, and the examiner subsequently rejected all of the claims of the 534 patent, finding them either anticipated by the primary reference or obvious over the prior art. (D.I. 4, Ex. 32, Ex. 33 at 1-2) On August 8,1995, Exxon filed a response in the reexamination disputing the examiner’s findings. (D.I.4, Ex. 33) Exxon argued that the primary reference did not anticipate the 534 patent claims because the aluminum to metal ratio in the 534 patent is based on total aluminum in the alumoxane solution not on total aluminum resulting from the preparation of the alumoxane; consequently, the primary reference did not exhort the use of a catalyst with an aluminum to metal ratio within the range claimed by the 534 patent. (D.I.4, Ex. 33) Exxon also argued that the primary reference in combination with the secondary references did not teach that an aluminum to metal ratio of 1000:1 or less may be used in a high temperature, high pressure process to produce high molecular weight polymers. (D.I. 4, Ex. 33 at 7-11) On October 18, 1995, the examiner rejected, for a second time, all of the claims of the 534 patent. (D.I. 4, Ex. 35 at 1) Exxon appealed the examiner’s rejection to the Board on February 15, 1996. (D.I.4, Ex. 35, Ex. 34) 3. Exxon’s Third Allegedly Fraudulent Scheme (Scheme 3) The third allegedly fraudulent scheme involves Exxon’s U.S. Patent No. 5,322,728 (“the 728 patent”), covering fibers, and fabrics made from them, of ethylene copolym-ers. (D.I.4, Ex. 40) Dow contends that the attorneys authorized to prosecute the 728 patent, Exxon Attorneys “B,” “G,” and “D,” deliberately failed to cite eight material prior Exxon patents and patent applications in violation of their duty to disclose all known information that is material to patentability, 37 C.F.R. § 1.56. (D.I. 2, ¶ 72-74; D.I. 4, Ex. 49) Dow avers that each of these prior art references (1) describes the ethylene comonomer and starting materials described in the 728 patent; (2) describes the polymerization process and use of the metallocene catalyst set forth in the 728 patent; and (3) states that the polymer created by the polymerization process can be used to make, inter alia, fibers. (D.I. 2, ¶ 74; D.I. 4, Exs. 41^48) One or more of the Exxon attorneys responsible for prosecuting the 728 patent were also responsible for prosecuting the eight prior art references Dow contends were withheld from the PTO. (D.I.4, Exs.50-57) Thus, Dow alleges that either EA-B, -C, or -D, if not all of them, were aware of the material nature of the references. (D.I.2, ¶¶ 75-76) Dow avers that had these references been considered by the PTO, the 728 patent would not have issued. (D.I.2, ¶¶ 77-79) On June 20, 1995, Dow requested two interferences with the 728 patent. (D.I.57, Ex. 25) Dow contends that Exxon has used the fraudulently obtained 728 patent to impede competitors from marketing polyethylenes made using single-site catalysts for fabric and fiber end-uses. (D.I.2, ¶ 80-82) According to Dow, it has delayed development of its own polyethylene products because of the risk that Exxon will attempt to block its efforts through infringement allegations. (D.I.2, ¶ 81) Dow contends that the only way competitors can safely market polyethylenes for fabric and fiber end-uses is by paying-Exxon for a license. (D.I.2, ¶ 81) Thus, Dow contends, Exxon is in a position to sell its polyethylenes to fabric and fiber manufacturers without charging a premium, something its competitors are unable to do. (D.I.2, ¶ 82) 4. Exxon’s Fourth Allegedly Fraudulent Scheme (Scheme 4) Exxon’s fourth allegedly fraudulent scheme involves Patent Office Interference No. 103,404 (“the 404 interference”) between Dow’s U.S. Patent No. 5,272,236 (“the 236 patent”) and Exxon U.S. Patent Application Serial No. 08/149,268 (“the 268 patent application”). The 236 patent covers a class of polyethylenes (ethylene/a-olefin copolymers) that contain long chain branching made using Dow’s INSITE® technology. (D.I.4, Ex. 58) The polymers within this class have a high melt flow ratio (“Iio/I2”), a relatively narrow molecular weight distribution (“Mw/Mn”), and a relatively broad critical shear stress at onset of gross melt fracture (“OGMF”). (D.I.4, Ex. 58) Included within the class are Dow’s AFFINITY® and ENGAGE® polymer products, both of which are commercially successful for many end-use products. (D.I.4, Exs.59, 60) The 236 patent application was filed on October 15,1991, and the patent issued to Dow on December 21,1993. (D.I.4, Ex. 58) On November 8, 1993, Exxon’s attorney, “E,” filed the 268 patent application. At the same time he requested that the examiner declare an interference between this application and Dow’s 236 patent, arguing that the 268 patent application discloses and claims the same polymers and process to prepare those polymers as does the 236 patent. (D.I. 4, Ex. 61 at 5) According to EA-E, Example 47 of the 268 patent application possessed the properties claimed in the 236 patent, i.e., a melt flow rate Ik/I2=17 .56 and a molecular weight distribution Mw/M„=2.552. (D.I. 4, Ex. 61 at 5) EA-E conceded that the OGMF of Example 47 could not be measured by the method set forth in the 236 patent. (D.I. 4, Ex. 61 at 5) EA-E argued that since Example 47 first appeared in the 841 patent application it was entitled to an effective filing date of September 13,1990. (D.I.4, Ex. 61 at 8) Although Example 47 was included in the 813 patent application as well as the parent application, the 841 patent application (D.I. 4, Ex. 66 at 63), the properties of the polymer exemplified in Example 47, specifically the melt flow rate and molecular weight distribution, were not disclosed in either patent application. (D.I.4, Ex. 61 at 8) However, patent claims 15 and 16, which were added to the 268 patent application, did disclose these properties. Specifically, claim 15 covered a process for preparing the polymer exemplified in Example 47: A process of preparing on ethylene/l-oc-tene copolymer having a melt flow ratio, Iio/l2=17.56, and a molecular weight distribution, Mw/Mn=2.552 ____ (D.I.4, Ex. 63 at 89) Claim 16 covered the polymer produced by the process set forth in claim 15. (D.I.4, Ex. 63) It was claims 15 and 16 that EA-E designated as corresponding to counts 1 and 2 of the interference, respectively. (D.I.4, Ex. 61 at 15) Dow avers that this information was added in contravention of EA-E’s certification, which accompanied the application, that the 268 application was a “true copy” of the prior 813 patent application. (D.I.2, ¶¶ 101-02; D.I.4, Ex. 64 at 4) Dow contends that EA-E intentionally created the “misimpression” that this information was included in the 813 and 841 patent applications although he knew that not to be the case. (D.I.2, ¶ 100) Dow also maintains that Exxon knew that the Ii0 /I2 measurement for Example 47 was inflated because over time the Ik/I2 value of an uns-tabilized polymer, as was the three-year-old portion of Example 47 that was tested, “increases dramatically.” (D.I.2, ¶ 105; D.I.4, Exs. 67, 68, 69) Interference No. 103,404 (“the 404 interference”) was declared on June 14, 1994. (D.I.4, Ex. 62) The 268 patent application was named the senior party and the 236 patent the junior party. (D.I.4, Ex. 62) The Administrative Patent Judge (“APJ”) set forth two counts; claims 1-38 of the 236 patent and claims 15 and 16 of the 268 patent application were designated as corresponding to the counts. (D.I.4, Ex. 62) During the interference, Dow submitted a number of preliminary motions arguing, inter alia, that (1) “the melt flow ratio reported in Example 47 is not the melt flow ratio for the product produced when that example was performed” because the retained portion of Example 47 that was tested by Exxon was one which had aged at least three years unprotected by antioxidants (D.I.36, Ex. 9 at A231-34, A302-03, A331-32); and (2) Exxon should not be allowed the benefit of the 841 patent application filing date because it failed to establish that the parent application inherently discloses a polymer having characteristics within the limitations (i.e., the melt flow ratio, molecular weight distribution, and OGMF) claimed in the 236 patent, thus the matter added to the 268 patent application (i.e., claims 15 and 16) constitutes new matter. (D.I.36, Ex. 10 at A355-60, A334-41; Ex. 11 at A451-56, A468-92) The APJ rejected Dow’s arguments, finding that Exxon’s testing of the product of Example 47 was not flawed because the product tested “was not a freshly made one” and that Exxon was properly accorded the benefit of the prior applications because Example 47 was present in the 813 and 841 parent applications. (D.I.4, Ex. 79 at 13, 32-33) However, the APJ did agree with Dow that the 268 patent application did add matter not disclosed in the prior application and thus it was a continuation-in-part application rather than a continuation patent as Exxon contended. (D.I. 4, Ex. 79 at 13-14) The APJ required Exxon “to bring this matter to the attention of the primary examiner and to file an appropriate oath.” (D.I.4, Ex. 79 at 14) On December 5, 1995, judgment in the interference was entered against Dow on procedural grounds. (D.I.4, Ex. 80) Dow appealed the decision to this court on March 27, 1996. See Dow Chem. Co. v. Exxon Chem. Patents, Inc., No. 96-190-SLR, 1998 WL 175883 (D.Del. Mar.24, 1998). This court vacated the interference judgment against Dow and remanded the case to the Board for further proceedings. See id. Dow contends in its complaint that “Exxon has used and invested the proprietary rights it has fraudulently asserted to benefit its competitive position to the detriment of competitors, including Dow.” (D.I.2, ¶ 119) According to Dow, as a result of Exxon’s activities, it has lost business opportunities, experienced delays in implementing its IN-SITE’ technology, and been forced to divert money that would have been spent developing further its INSITE® technology to refuting and exposing Exxon’s fraudulently asserted proprietary rights. (D.I.2, ¶ 121) 5. Exxon’s Fifth Allegedly Fraudulent Scheme (Scheme 5) Exxon’s fifth allegedly fraudulent scheme is, in essence, an expansion of its fourth allegedly fraudulent scheme. During the ’404 interference, Dow filed an application to reissue the ’236 patent, reissue application Serial No. 08/305,631 (“the ’631 reissue application”). In response, on June 27,1995, Exxon filed a protest under 37 C.F.R. § 1.291(a) against the ’631 reissue application, arguing that the claims of the ’631 reissue application should be rejected on the basis of the arguments made in the ’404 interference and the APJ’s determination in the interference that most of the claims of the ’236 patent are unpatentable. (D.I.4, Ex. 82) On March 13, 1996, the examiner (1) allowed some of the claims of the ’631 reissue application, (2) rejected some of the claims (indicating that they would be allowable if the mentioned § 112 rejections were overcome by appropriate amendment), and (3) provisionally rejected a number of claims based upon count 1 of the ’404 interference. (D.I.4, Ex. 83) The examiner also suspended prosecution of the ’631 reissue application pending determination of priority in the ’404 interference. (D.I.4, Ex. 83 at 5) On June 7, 1996, Exxon filed a second protest under 37 C.F.R. § 1.291(a) against the ’631 reissue application. (D.I.4, Ex. 84) According to Exxon, this protest addressed new issues, such as the fact that judgment had been entered against Dow in the ’404 interference, and therefore complied with PTO rules regarding new protests by earlier protestors. (D.I.4, Ex. 84 at 1-2) In the protest, Exxon argued, inter alia, that certain claims of the ’631 reissue application were unpatentable as anticipated by or obvious over Example 7 of Exxon’s U.S.Patent No. 5,055,438 (“the ’438 patent”). (D.I.4, Ex. 84 at 31-33) Exxon contended that the properties of the copolymer of ethylene and bu-tene-1 exemplified by Example 7 fell within the limitations claimed by the ’631 reissue application. (D.I.4, Ex. 84 at 31-33) Specifically, Exxon averred that the I10/I2 and Mw /Mn of the copolymer were 9.4 and 3.42, respectively. (D.I.4, Ex. 84 at 31-33) The examiner recommended that Exxon’s second protest be rejected, however a PTO Group Director, although he dismissed the petition as unnecessary, directed the examiner to consider the second protest. (D.I.4, Ex. 86) On January 7, 1997, the reissue examiner indicated the allowance of certain claims of the ’631 reissue application subject to the approval of the APJ in the ’404 interference. (D.I.36, Ex. 12) The examiner continued the rejection of other claims. (D.I.36, Ex. 12) With regard to Exxon’s second protest, the examiner stated: [T]he [ ] declaration indicating] that the polymer of Example 7 of the ’438 patent contains long chain branching based on activation energy is erroneous and without merit. As such, the polymer of Example- 7 is not inherent property of the instant claimed polymer because inherency requires getting the properties at all times. (D.I.36, Ex. 12) Dow contends that Exxon has fraudulently asserted rights in Dow’s ’631 reissue application in order “to improve its competitive position to the detriment of Dow and Dow’s customers.” (D.I.2, ¶ 130) According to Dow, by filing these allegedly unauthorized protests and by allegedly misrepresenting the properties of the retained samples, Exxon has delayed the reissue of Dow’s 236 patent and “has perpetuated the perceived cloud of uncertainty over Dow’s INSITE® Technology polymer products and whether customers can be assured of their right to use Dow’s INSITE® Technology polymer products free from potential claims by Exxon.” (D.I.2, ¶ 131) Thus, Dow asserts Exxon has caused competitive harm to Dow. (D.I.2, ¶ 132) 6. Exxon’s Sixth Allegedly Fraudulent Scheme (Scheme 6) Exxon’s sixth allegedly fraudulent scheme involves Dow’s U.S.Patent No. 5,278,272 (“the ’272 patent”) filed on September 2, 1992, covering a class of polymers having “very good processability” as well as lower processing indices and a higher critical shear rate at the onset of surface melt fracture (“OSMF”). (D.I.4, Ex. 87) Included within this class of compounds are polyethylenes made by Dow’s INSITE® Technology. On July 6, 1995, EA-E filed a request for an interference between the ’272 patent and an Exxon continuation patent filed from Exxon’s ’813 patent application (“the B010D4 patent application”). (D.I.4, Ex. 88) Previously, Exxon had requested that the ’272 patent be added to the ’404 interference, but this request was denied. (D.I.4, Ex. 88 at 2) In the request for an interference, EA-E averred that “properties explicitly and inherently disclosed” in Example 7 of the B010D4 patent application include a Mw/Mn=3.42 and an Iio/l2=9.4 — the same properties claimed in the ’272 patent. (D.I.4, Ex. 88 at 13, 21) EA-E contended that neither the critical shear rate at OSMF nor the processing index properties claimed in the ’272 patent added a new or distinctive limitation to the claims of the ’272 patent over the first I1(/l2 limitation. Rather, both of the properties in the third limitation are merely a restatement of the I10/I2 limitation, which is already specified expressly in all the independent claims. (D.I.4, Ex. 88 at 6) EA-E also argued that the B010D4 patent application was entitled to the benefit of the September 5, 1989 filing date of Exxon’s ’945 patent application in which Example 7 first appeared. In September 1996, the APJ declared interference No. 103,797 (“the ’797 interference”) between the ’272 patent and the B010D4 patent application. (D.I.4, Ex. 89) The B010D4 patent application was named the senior party and the ’272 patent the junior party. (D.I.4, Ex. 89) The APJ set forth one count, to which claims 1-37 of the ’272 patent and claims 15 and 16 of the B010D4 patent application were designated as corresponding. (D.I.4, Ex. 89) Dow argues that Exxon knowingly misrepresented that the I10/I2 measurement of the unstabilized product of Example 7 accurately reflected the properties exhibited by the polymer when it was produced. (D.I.2, ¶¶ 143-44) According to Dow, Exxon was well aware that the properties of the ^-year-old retained sample of Example 7 would have “drastically changed” over time. (D.I. 2, ¶¶ 143-44) Dow puts forth as evidence of Exxon’s alleged misrepresentation the fact that Exxon initially indicated that Example 7 had been destroyed during testing, but that, after Dow filed a preliminary motion requesting the APJ to draw adverse inferences because no sample remained, Exxon discovered portions of Example 7 for Dow to test. In its complaint, Dow contends that Exxon’s fraudulent assertion of rights in Dow’s ’272 patent has “perpetuate[d a] cloud of uncertainty over Dow’s INSITE® Technology polymer products.” (D.I.2, ¶ 149) 7. Exxon’s Seventh Allegedly Fraudulent Scheme (Scheme 7) Finally, Dow contends that Exxon fraudulently attempted to obtain a patent covering single-site catalysts, by intentionally concealing the best mode of practicing the invention contained therein. This seventh allegedly fraudulent scheme involves Exxon’s U.S.Patent Application Serial No. 07/542,236 (“the ’236 patent application”) and Dow’s U.S.Patent Nos. 5,064,802 (“the ’802 patent”) and 5,132,380 (“the ’380 patent”). Exxon’s ’236 patent application, filed June 22, 1993, covers single-site catalyst systems for use in “the production of polyolefins, particularly polyethylene, polypropylene, and ethylene-a-olefin compounds.” (D.I.4, Ex. 92 at 8) The catalyst systems claimed by the ’236 patent application are comprised of a transition metal component (“the A component”) and an ion-exchange reagent. (D.I.4, Ex. 92 at 10-11) The A component has a chemical formula of CPMXn+i, where CP is a cyelo-pentadienyl ring, M is a metal, and Xn+i refers to other constituents further defined in the patent claims. (D.I.4, Ex. 92 at 11-12) Dow contends that the only cyclopentadie-nyl ring employed by Dr. Canich, one of the inventors of the ’236 patent application, in her reductions to practice of the A component of the catalyst was tetramethyl-CP (“tm-CP”) and, thus, it constitutes the best mode of practicing the invention. (D.I.2, ¶ 160; D.I.4, Exs. 93-94) Exxon initially had difficulty synthesizing the tm-CP compound and ultimately relied on a preparation used by Dr. Bercaw, an outside Exxon consultant. (D.I.4, Exs.95-100) The Bercaw preparation is a “particularly sensitive preparation” with “the sensitive step [being] the drop-wise addition of sulfuric acid.” (D.I.4, Ex. 99 at 15-17; see also Ex. 99 at 120) In a May 10,1989 memorandum to EA-B containing “updated information” regarding the then draft ’236 patent application, Dr. Canich stated with respect to catalyst preparation that “LiHC5Me4 [the tm-CP] was prepared as described by J.E. Bercaw in a private communication.” (D.I.4, Ex. 101) The ’268 patent application was submitted to the PTO without reference to Dr. Bercaw’s method of preparing tm-Cp. (D.I.4, Ex. 92) In January 1991 all of the claims of the ’236 patent application were rejected, inter alia, as being indefinite under 35 U.S.C. § 112. (D.I.4, Ex. 92 at 53-55) On April 8, 1991, Exxon filed a response to the examiner’s rejection, amending the specification and claims in accordance with the examiner’s suggestions. (D.I.4, Ex. 92 at 63-75) On May 24, 1991, the Examiner found all of the amended claims allowable but suspended ex parte prosecution of the application until November 28, 1991 due to a potential interference. (D.I.4, Ex. 92 at 80-81) On February 3, 1992, the claims were rejected under 35 U.S.C. § 102(e) as being anticipated by Dow’s ’802 patent. (D.I.4, Ex. 92 at 90-91) In response, Exxon, inter alia, requested an interference between the ’236 patent application and Dow’s ’802 and ’380 as well as its U.S.Patent No. 5,066,741 (“the ’741 patent”). In addition, Exxon amended the specification of the ’236 patent application to claim priority under prior U.S. patent applications and contended that, as a result, it should be named the senior party with respect to any interference declared. (D.I.4, Ex. 92 at 137-38) In February 1993, the APJ declared interference No. 103,112 between the ’802 patent and the ’236 patent application (“the ’112 interference”); interference No. 103,113 between the ’380 patent and the ’236 patent application (“the ’113 interference”); and interference No. 103,114 between Dow’s ’741 and ’380 patents and the ’236 patent application (“the 114 interference”). (D.I.4, Ex. 102) In each interference, Exxon was designated the senior party. (D.I.4, Ex. 102) During the prehminary motion period in the 112 interference, Dow requested that Exxon not be accorded the benefit of the prior application with respect to the three counts at issue. (D.I.4, Ex. 103) Dow contended that none of the benefit applications contained a written description of an embodiment within the scope of any of the counts. (D.I.4, Ex. 103 at 15-22) Specifically Dow argued that the Canich parent applications describe monoeyclopentadienyl transition metal components, but not the second component, while the Turner and Hlatky parent applications describe the second components, but not in conjunction with monocyclopentadienyl first components.... In short, the complexes of the Canich “parents” and the Turner et al. “parents” describe the complexes of the counts only in the sense that hydrogen cyanide and sodium hydroxide together describe water (hydrogen hydroxide). That is, the first component part (hydrogen) can be found in hydrogen cyanide, and the second component part (hydroxy) can be found in sodium hydroxide but that coincidence does not amount to a description of HOH. (D.I.4, Ex. 103 at 19-20) (emphasis in original). In its opposition to Dow’s request, Exxon argued that it was entitled to the benefit of the earlier filing date because all of the elements of the catalyst system claimed by the ’236 patent application were disclosed in the six parent applications. (D.I.4, Ex. 105) In March 1996, the APJ granted Dow’s request, finding that “there [was] no enabling written description of an embodiment within the counts in any of the parent applications.” (D.I.4, Ex. 104) On October 2, 1996, Dow filed Contingent Motion No. 22 in the ’112 interference, asserting that all of the ’268 patent application claims corresponding to the count of the interference were unpatentable for inequitable conduct. (D.I.36, Ex. 15) Specifically, Dow contended that the applicants and their representatives made “highly” material misrepresentations and submitted false statements and false expert testimony regarding their entitlement to the benefit of the earlier filing date. (D.I.36, Ex. 15) Dow argued that the misrepresentations were made with the intent to deceive the examiner regarding Exxon’s entitlement to the benefit of the earlier filing date. (D.I.36, Ex. 15) On November 12, 1996, Exxon filed its opposition, refuting Dow’s arguments. (D.I.36, Ex. 15) Dow filed its reply on December 17, 1996. (D.I.36, Ex. 15) On November 12, 1996, Dow filed motion no. 26 in the 112 interference, arguing that all of the ’236 patent application claims involved in the interference were invalid for failure to disclose the best mode. (D.I.36, Ex. 14) Dow contended, inter alia, that despite the fact that every reduction to practice performed by the applicants used the tm-CP component, the patent does not disclose Dr. Bercaw’s preferred method for making tm-CP even though it was the only method successfully employed by the candidates. (D.I.36, Ex. 14) Instead, Dow avers, the ’236 patent application refers to two references which teach methods that the applicants were unable to employ successfully. (D.I.36, Ex. 14) On December 2,1996, Exxon filed its opposition to Dow’s motion, challenging Dow’s contentions. (D.I.36, Ex. 14) Dow filed its reply on December 17, 1996. (D.I.36, Ex. 14) In its complaint at bar, Dow asserts that Exxon’s attorneys intentionally omitted from the ’236 patent application any reference to Dr. Bercaw’s preparation, instead submitting the patent application to the PTO with only a disclosure of methods that teach that tetramethyl-Cp is to be formed by following the procedures outlined in the Kohler et al. and Fendrick et al. publications — -methods the inventors themselves could not successfully use to form the tetramethyl-Cp component. (D.I.2, ¶ 168) Dow also alleges that Exxon fraudulently represented to the PTO that it was entitled to the benefit of earlier filing dates so that it could be designated the senior party in the interferences and thereby prevent Dow from discovering Exxon’s intentional concealment of the best mode. (D.I.2, ¶¶ 174-82) Dow contends that Exxon’s fraudulent assertion of patent rights in Dow’s numerous single-site catalyst inventions has allowed Exxon to continue its efforts to develop and use these catalysts to make and sell polyethylenes without the risk that Dow might assert its ’380 or ’802 patents, or require Exxon to take a license. (D.I.2, ¶ 183) According to Dow, Exxon’s fraudulent assertions with respect to its proprietary rights in Dow’s technology have re-suited in lost or delayed licensing opportunities as well as the “inability to deliver patent protection” for its single-site catalyst technology. (D.I.2, ¶ 184) Dow avers that it faces the risk that, should Exxon somehow succeed in asserting that it first invented Down’s novel single-site catalysts, Exxon would assert these rights to block Dow from using numerous single-site catalysts that were independently developed at Dow through intensive research and development efforts, unless Dow pays Exxon. (D.I. 2,11 184) IV. DISCUSSION Exxon has moved for dismissal of Dow’s complaint pursuant to Fed.R.Civ.P. 12(b)(1), or alternatively to stay the action pending the conclusion of the proceedings currently before the PTO or on appeal. (D.I.34) Exxon also has moved for dismissal of Dow’s complaint pursuant to Fed.R.Civ.P. 12(b)(6). (D.I.34) Since jurisdiction must be decided before the court can decide Exxon’s Rule 12(b)(6) motion, see Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the court shall address the Rule 12(b)(1) motion first. A. Subject Matter Jurisdiction 1. Standard of Review under Fed. R.Civ.P. 12(b)(1) Not only may the lack of subject matter jurisdiction be raised at any time, it cannot be waived and the court is obliged to address the issue on its owm motion. See Moodie v. Federal Reserve Bank of New York, 58 F.3d 879, 882 (2d Cir.1995). Once jurisdiction is challenged, the party asserting subject matter jurisdiction has the burden of proving its existence. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). Under Rule 12(b)(1), the court’s jurisdiction may be challenged either facially (the legal sufficiency of the claim) or factually (sufficiency of jurisdictional fact). See 2 James W. Moore, Moore’s Federal Practice § 12.30[4] (3d ed.1997) (hereinafter Moore’s Federal Practice). Under a facial challenge to jurisdiction, the court must accept as true the allegations contained in the complaint. See id. § 12.30[4], Dismissal for a facial challenge to jurisdiction is “proper only when the claim ‘clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or ... is wholly insubstantial and frivolous.’ ” Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-1409 (3d Cir.1991) (quoting Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)); see Oneida Indian Nation v. County of Oneida, New York, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974); Kulick v. Pocono Downs Racing Ass’n, 816 F.2d 895, 897-899 (3d Cir.1987). Under a factual attack, however, the court is not “confine[d] to allegations in the [ ] complaint, but [can] consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction.” Gotha v. United States, 115 F.3d 176, 179 (3d Cir.1997); see Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891-892 (3d Cir.1977); see also Moore’s Federal Practice § 12.30[3]. Although the court should determine subject matter jurisdiction at the outset of a case, “the truth of jurisdictional allegations need not always be determined with finality at the threshold of litigation.” Moore’s Federal Practice § 12.30[1]. Rather, a party may first establish jurisdiction “by means of a nonfrivolous assertion of jurisdictional elements and any litigation of a contested subject-matter jurisdictional fact issue occurs in comparatively summary procedure before a judge alone (as distinct from litigation of the same fact issue as an element of the cause of action, if the claim survives the jurisdictional objection).” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 537-38, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) (internal citations omitted). 2. Ripeness In the instant action, Exxon contends that Dow’s claims are not ripe for adjudication because the pending PTO proceedings might significantly affect, if not resolve, the issues at bar. The Supreme Court has explained the policies underlying the ripeness doctrine in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967): [I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Id. at 148-49, 87 S.Ct. 1507. The Court set forth a two-prong standard by which to evaluate the ripeness of a claim: (1) “the fitness of the issues for judicial decision”; and (2) “the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. 1507. Both prongs must be satisfied before a court can exercise its jurisdiction. Issues are fit for adjudication if there exists a present ease or controversy between the parties. Thus, “courts will not decide a case where the claim involves ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Binker v. Pennsylvania, 977 F.2d 738, 753 (3d Cir.1992) (quoting 13A Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3532 at 112 (1984)). Dow’s complaint alleges an overarching scheme in violation of RICO, involving a pattern of fraudulent misrepresentations to the PTO. This alleged pattern of racketeering, according to Dow, has caused injury to Dow that the outcome of the PTO proceedings will not obviate. Although in certain contexts allegations of fraud may be heard by the PTO, the PTO lacks jurisdiction to hear Dow’s RICO claims. Nor does the PTO have the authority to award Dow the extraordinary remedy of treble damages and attorneys’ fees which it seeks. Furthermore, Dow’s RICO claims are premised upon fraudulent misrepresentations, the standard for which are within the traditional competence of the district courts. Thus, referral of the misrepresentation issues to the PTO is not justified “by the interest in promoting uniformity and accuracy of decisionmaking with an agency’s area of expertise.” Shaw v. Rolex Watch U.S.A., Inc., 776 F.Supp. 128, 132 (S.D.N.Y.1991). The court recognizes that the issues before the PTO involve issues of fact that underlie Dow’s contentions before this court; nevertheless, the PTO’s findings would not be res judicata in this ease. The court concludes, therefore, that the ultimate resolution of the underlying PTO proceedings will not eliminate the justification for litigation under RICO. The cases cited by Exxon are inapposite. In those cases the existence of a ease or controversy was dependent on the resolution of pending judicial or administrative proceedings. See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1581-83 (Fed.Cir.1993) (dismissing plaintiffs complaint seeking to set aside a Department of Energy “Determination” asserting title to the subject matter of plaintiffs patent application because, were the PTO to conclude that a party other than plaintiff “should prevail in the Interference, any decision by the federal courts regarding the efficacy of the Determination'would have absolutely no effect with regard to [plaintiffs] patent rights”); Lincoln House, Inc. v. Dupre, 903 F.2d 845 (1st Cir.1990) (affirming dismissal of RICO claims because the only injury alleged by plaintiff was the inability to satisfy a prospective state court judgment against defendant); Country Mut. Ins. Co. v. American Farm Bureau Fed’n, 876 F.2d 599 (7th Cir.1989) (finding that a trademark registration had not yet been “procured” within the meaning of the Lanham Act where the registration application was pending before the Trademark Office and thus claim that prosecution of the application for registration was fraud on the office was not yet ripe for adjudication); Terra Nova Ins. Co. v. DiStefano, 663 F.Supp. 809 (D.R.I.1987) (staying RICO claim where plaintiffs ability to demonstrate it was injured as a result of scheme to defraud insurers was contingent upon its prevailing in a pending state court proceeding addressing the right to recover under the insurance policy and defendants’ bad faith); Miller v. Lucas, 51 Cal.App.3d 774, 124 Cal.Rptr. 500, 191 U.S.P.Q. 166 (Cal. Ct.App.1975) (dismissing plaintiffs state tort claims because the PTO interference proceeding was still pending, where the only act alleged was that defendant filed applications in the PTO that “conflicted” with plaintiffs patent) , Here, Dow’s claims are not contingent upon the outcome of issues which the PTO might consider. Regardless of the outcome of the PTO proceedings, the legal prerequisites to sustaining Dow’s cause of action under RICO would not necessarily be eliminated. See Minnesota Mining & Mfg. Co. v. Norton Co., 929 F.2d 670 (Fed.Cir.1991). Therefore, this is not a case where the action before the court “may not occur at all.” The court finds that Dow has established both the fitness of the issues for adjudication and hardship. Since both prongs of the analysis have been satisfied, the court concludes that Dow’s RICO claims are ripe for judicial decision. 3. Noerr-Pennington Doctrine Exxon also argues that because Dow’s RICO claims are based solely upon Exxon’s petitioning activity before the PTO, resolution of these proceedings may immunize Exxon from liability under the Noerr-Pennington doctrine. The Noerr-Penning-ton doctrine emanated from the Supreme Court’s decision in Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); accord United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). In Noerr, the Court held that antitrust violations may not be predicated upon the defendant’s attempts to influence the passage or enforcement of laws. See Noerr, 365 U.S. at 135, 81 S.Ct. 523. This principle, which is premised upon the First Amendment’s right to petition the government, has been expanded to include access to courts and administrative agencies. See California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). Although the Noerr-Pennington doctrine was first recognized in the context of antitrust litigation, it has been extended beyond that context. See, e.g., Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983) (extending the Noerr-Pennington doctrine to bar the NLRB’s attempt to enjoin prosecution of a suit as an unfair labor practice); Whelan v. Abell, 827 F.Supp. 801, 803 (D.D.C.1993), rev’d on other grounds, 48 F.3d 1247 (D.C.Cir.1995) (“[I]f a person has a protected right to bring an objectively-based antitrust claim against a competitor, the same protection must be afforded to others who bring other such objectively-based claims and allegations before a government agency or court.”). In general, therefore, the Noerr-Pennington doctrine “protects those who attempt to use the power of government organs, including the judiciary, to further private ends.” FilmTec Corp. v. Hydranautics, 67 F.3d 931, 937 (Fed.Cir.1995). The Noerr-Pennington doctrine, however, does not protect “sham” litigation. See Noerr, 365 U.S. at 144, 81 S.Ct. 523. If an action “ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor [then] the application of the Sherman Act would be justified.” Id. The Supreme Court recently clarified this “sham” exception in Profession al Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (hereinafter PRE). The Court set forth a two-part definition of sham litigation: First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals “an attempt to interfere directly with the business relationships of a competitor” through the “use [of] the governmental process — as opposed to the outcome of that process — as an anti-competitive weapon.” Id. at 60, 113 S.Ct. 1920 (citations omitted). In a recent case, Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059 (Fed.Cir.1998), the Federal Circuit addressed whether the Noerr-Pennington doctrine is vitiated by .fraud on the PTO, specifically the effect of PRE on Walker Process and its progeny. The Federal Circuit determined that PRE’s two-part test for a sham is applicable to an antitrust claim based on the assertion of a patent procured by knowing and willful fraud. See id. at 1071 (“PRE and Walker Process provide alternative legal grounds on which a patentee may be stripped of its immunity from the antitrust laws; both legal theories may be applied to the same conduct.”). Relying on the Supreme Court’s decision in PRE, the Federal Circuit concluded that under PRE, a sham suit must be both subjectively brought in bad faith and based on a theory of either infringement or validity that is objectively baseless. Accordingly, if a suit is not objectively baseless, an antitrust defendant’s subjective motivation is immaterial. Id. at 1072. The court concludes that it cannot properly determine from the pleadings whether or not Exxon’s petitioning activity in the various PTO proceedings at issue is objectively baseless. See Hydranautics v. Filmtec Corp., 70 F.3d 533, 537-39 (9th Cir.1995). Dow asserts facts that, if true, would prove that Exxon engaged in a pattern of fraudulent conduct before the PTO in order to procure or assert patent rights. Exxon denies that such fraud occurred. Without further evidence, the court declines to opine as to Exxon’s immunity from suit under the Noerr-Pennington doctrine. Cf. FilmTec Corp., 67 F.3d at 938 (finding that where there is no dispute as to the facts, the question as to whether or not a suit was objectively baseless is a question of law). 4. Collateral Attack on Administrative Proceedings Finally, Exxon argues that Dow’s claims are precluded as a matter of law by the prohibition on collateral attacks on PTO decisions. Schemes 1, 2, 3, and 5 involve allegations of fraudulent conduct occurring as part of patent prosecution, reexamination, or reissue proceedings. Because these proceedings are conducted ex parte between the applicant and the PTO, Dow has been precluded from raising allegations of fraud before the PTO. Therefore, the allegations asserted in Schemes 1, 2, 3, and 5 cannot be characterized as collateral attacks on the PTO. By contrast, schemes 4, 6, and 7 involve interference proceedings, inter partes contests during which the PTO is able to review allegations of fraud. With respect to sche