Making Sense of Therasense: The Federal Circuit Tightens Inequitable Conduct Standards
In a landmark split decision, the Federal Circuit has issued an en banc decision that "tightens the standards" for finding inequitable conduct in patent litigation. In Therasense, Inc. v. Becton, Dickinson & Co., Nos. 2008 –1511, –1512, –1513, –1514, –1595 (Fed. Cir. May 25, 2011), the court announced a more stringent standard for proving materiality of an undisclosed prior art reference, reiterated the standard for proving intent to deceive, and did away with the so-called "sliding scale" approach to weighing both factors. Chief Judge Rader delivered the opinion for the majority in this 6-1-4 split decision.