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Microsoft, Therasense And Burdens Of Proof

Law360 (February 17, 2011, 2:15 PM EST) -- The Court of Appeals for the Federal Circuit has complained that "the habit of charging inequitable conduct in almost every major patent case has [been] an absolute plague."[1] In almost every case in which inequitable conduct is alleged, the assertion is predicated on a failure to disclose information in patent prosecution, often relevant prior art.

Since 1982, the Federal Circuit has repeatedly restated the elements and burden of proof in inequitable conduct cases, it has redefined the meaning and level of materiality, and it has re-described...
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