Therasense, Inc. v. Becton, Dickinson and Company (Fed. Cir. 2011)
Jan 01, 2011OUTCOME: Application of the law of inequitable conduct was greatly limited.
The en banc decision of the Court of Appeals for the Federal Circuit in Therasense provides a long-overdue injection of reasonableness in the "plague" of inequitable conduct charges which has infested ... our Patent Office and judicial system. Replacing an unworkable 'sliding scale' approach to materiality and scienter, the Court ruled that a putative act of inequitable conduct before the U.S. Patent Office must either evidence 'but for' materiality or comprise an unconsciable act. Further, the requisite level of intent is not to be lightly inferred, but must, in effect, represent the only reasonable inference permitted by the facts. Most commentators ... and this one ... see this decision as limiting charges of inequitable conduct before the Patent Office to acts which approach classical fraud.
