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The Federal Circuit to Address the Inequitable Conduct Doctrine En Banc for the First Time in Over 20 Years

Proponents of inequitable conduct reform have heavily petitioned Congress for change. The Federal Circuit, however, is poised to be the first to take action as a result of yesterdays grant of a request for en banc rehearing on the issue of inequitable conduct in Therasense, Inc. v. Becton, Dickinson & Co. 2008-1511 (Fed. Cir. 2010) (available here).

Over 20 years ago, in Kingsdown Medical Consultants, Ltd. v. Hollister Inc., the Federal Circuit issued an en banc opinion in which it held that inequitable conduct requires that both materiality and deceptive intent be separately proven by clear and convincing evidence. 863 F.2d 867 (Fed. Cir. 1988). Many district courts, and even the Federal Circuit, however, have been criticized for inconsistently applying Kingsdown and its progeny, turning the application and value of the inequitable conduct doctrine into hotly debated issues.

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