Inequitable Conduct in New Patent Law
A Federal Circuit court has handed down a ruling on the inequitable conduct defense in patent law cases that in essence guts this defense. In Therasense Inc v. Becton, Dickinson & Co. the majority opinion was that to prevail on the defense of inequitable conduct, the accused infringer must prove that the applicant misrepresented or omitted material information with the specific intent to deceive the patent office.
Courts will now be required to determine whether the patent office would have allowed the claim if it had been aware of the undisclosed reference. This raisers the bar for what it takes to prove inequitable conduct, which is significant because as many as 80% of patent infringement cases include inequitable conduct allegations. Inequitable conduct has been referred to as the "atomic bomb" of patent law, because an inequitable conduct finding not only renders an entire patent unenforceable but it can also taint related patents.