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Fraud on the Patent Office — “inequitable conduct” in the modern language of patent law — renders the patent unenforceable. To establish inequitable conduct, one must prove both materiality and intent. In two recent biotechnology/pharmaceutical cases, Purdue Pharma L.P. v. Endo Pharmaceuticals Inc., 438 F.3d 1123 (Fed. Cir. 2006), and Ferring B.V. v. Barr Laboratories, 437 F.3d 1181 (Fed. Cir. 2006), different panels of the U.S. Court of Appeals for the Federal Circuit measured materiality and intent and drew virtually opposite conclusions. These decisions suggest uncertainty in the law and demonstrate the problems faced by practitioners when confronted with an allegation of inequitable conduct.

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