Law360, New York (June 2, 2011, 12:13 PM EDT) -- The Federal Circuit’s May 25 en banc opinion in Therasense Inc. v. Becton, Dickinson and Co., Appeal No. 2008-1511, 2011 WL 2028255 (Fed. Cir. 2011), has dramatically changed the judge-made law of inequitable conduct to tighten the elements of materiality and intent necessary for proving the defense. The court acknowledged it was doing so as part of an effort to cure the plague on the patent system engendered by this defense.
The inequitable conduct alleged in Therasense was the failure to disclose to the U.S....
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