Congress was considering inequitable conduct legislation again this year in connection with the Patent Law Reform Act of 2010, but we understand that effort failed when Congress enacted the Patient Protection and Affordable Care Act.
The Federal Circuit may instead judicially reform inequitable conduct through its April 26, 2010, grant of a request for en banc rehearing on this issue in Therasense Inc. v. Becton Dickinson & Co., No. 2008-1511, 2010 WL 1655391 (Fed. Cir. 2010). The Federal Circuits order suggests that it plans to significantly re-examine the doctrine.
In this article, we explore the background to the inequitable conduct reform, including both legislative and judicial, and the impact for the future.