Client Alert

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

May 25, 2011

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 here and here. 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.

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