If I forget and/or cannot relocate a reference that would otherwise be required in an information disclosure statement (IDS) under duty of disclosure, are there potential inequitable conduct issues even though I am unable to provide the reference? For instance, in a litigation scenario, discovery could turn up the reference (or at least exposure to such a reference) which one was previously unable to find or recall.
My specific scenario is that for one step/limitation of at least one claim, I feel like I have come across such information before, but cannot recall where. I suppose it is possible I used another product that had such a feature. An examiner search may turn up such a reference, or may not.
My guess would be that failure to recall/relocate is a weak defense, as it is hard to prove and subject to abuse. But at the same time, if even I can't relocate the reference despite my best efforts, it will probably be difficult for a potential challenger to do so.