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Articles

Fed.Cir. Affirms Inequitable Conduct Finding in Apotex v. UCB

August 20, 2014

Articles

Fed.Cir. Affirms Inequitable Conduct Finding in Apotex v. UCB

August 20, 2014

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The Federal Circuit’s recent decision in Apotex, Inc. v. UCB, Inc., — F.3d —-, 2014 WL 3973498 (Aug. 15, 2014), confirms that the doctrine of inequitable conduct is not yet dead. The Federal Circuit significantly tightened the standard for proving a patent is unenforceable for inequitable conduct in Therasense, Inc. v. Becton, Dickinson, & Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc). The doctrine had traditionally required proof of (1) a “material” misrepresentation or omission to the Patent Office, and (2) that the person responsible for the misrepresentation or omission did it with the intent to deceive. The significant change in Therasense was ratcheting up the standard for materiality, holding that conduct was material only if the examiner would not have issued the patent “but for” the conduct. Therasense allowed for only one exception to this high standard—“affirmative egregious misconduct,” such as “the filing of an unmistakably false affidavit,” is also material regardless of whether it would have changed the examiner’s behavior. —Read more on Fish’s Litigation Blog

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