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Lewis R. Clayton and Eric Alan StoneLewis R. Clayton and Eric Alan Stone ()

A patent applicant’s misconduct during the prosecution of a patent can render the patent unenforceable under the doctrine of “inequitable conduct.” A recent U.S. Court of Appeals for the Federal Circuit decision, Regeneron Pharmaceuticals v. Merus, potentially extends that doctrine to encompass misconduct during patent-infringement litigation, rather than just during patent prosecution. See No. 2016-1346, 2017 WL 3184400 (Fed. Cir. July 27, 2017). We report here on the Regeneron case and other cases addressing whether litigation misconduct can render a patent unenforceable, and provide guidance for practitioners.

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