Todays En Banc Oral Argument in Therasense: The Federal Circuit Wrestles With How Much To Reform Inequitable Conduct
By Bruce M. Wexler
Today, the Federal Circuit sitting en banc heard oral argument in Therasense, Inc. v. Becton, Dickinson & Co. The appeal focuses on the legal standards for proving the defense of inequitable conduct, and particularly the tests for proving materiality and intent and to what extent intent may be found based on materiality. The oral argument presented an opportunity not only for the Court to hear from the lawyers, but also and perhaps more importantly for the individual judges to debate one another about their respective views through their questions to the lawyers.