The Materiality Standard After Therasense

Law360, New York (January 13, 2011, 3:06 PM EST) -- In granting en banc review in Therasense v. Becton Dickinson & Co., the Court of Appeals for the Federal Circuit agreed to entertain amici briefs on, among other things, the following issue: What is the proper standard for materiality? What role should the United States Patent and Trademark Office’s rules play in defining materiality? Should a finding of materiality require that but for the alleged misconduct, one or more claims would not have issued?

While the Federal Circuit presently entertains five standards for materiality (the objective...
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