A divided 7-4 en banc opinion of the Federal U.S. Circuit Court of Appeals recently offered its solution to “the problems created by the expansion and overuse of the inequitable conduct doctrine” in Therasense Inc. v. Becton, Dickinson & Co. The majority’s solution is a recalibration of the legal standards for proving inequitable conduct as a defense to patent infringement.
Prior case law, balancing materiality and intent “where a weak showing of intent may be found sufficient based on a strong showing of materiality, and vice versa,” was jettisoned. According to the court, “[T]his court now tightens the standards for finding both intent and materiality in order to redirect a doctrine [inequitable conduct] that has been overused to the detriment of the public.”
