Client Alert

Generic Drug Manufacturers Inequitable-Conduct Defenses Dismissed for Failing to Meet Exergens Stringent Pleading Standard

June 08, 2010

Joseph M. O'Malley & Isaac S. Ashkenazi

On June 7, 2010, the United States District Court for the District of New Jersey issued one of the first decisions dismissing a generic drug manufacturers inequitable-conduct defenses for failing to meet the stringent pleading standard set forth in Exergen Corp. v. Wal-Mart Stores, Inc. 575 F.3d 1312 (Fed. Cir. 2009) (en banc) (requiring a party pleading inequitable conduct to describe the specific who, what, when, where, and how underlying the alleged material misrepresentation or omission committed before the PTO, and allege sufficient underlying facts from which a court may reasonably infer that a party acted with the requisite state of mind).

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