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Federal Circuit Significantly Tightens Doctrine of Inequitable Conduct Today in Its En Banc Therasense Ruling

By Joseph O'Malley, Bruce M. Wexler & Jason T. Christiansen

The Federal Circuit today issued its awaited en banc opinion in Therasense, Inc. v. Becton, Dickinson and Co., Appeal No. 2008-1511, defining the substantive standards for the inequitable conduct defense. As expected, the Court tightens the standards for finding both intent and materiality in order to redirect a doctrine that has been overused to the detriment of the public. Slip op. at 24. For a detailed background of the Therasense case and description of the arguments, see our previous client alerts

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. Chief Judge Rader authored the majority opinion, joined by Judges Newman, Lourie, Linn, Moore, and Reyna. Judge OMalley concurred in order to express her preference for a looser materiality standard. Judge Bryson dissented, joined by Judges Gajarsa, Dyk, and Prost.