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Regeneron Pharmaceuticals, Inc. v. Merus N.V.

No En Banc Rehearing on Issue of Litigation Misconduct Leading to Inference of Inequitable Conduct

Regeneron Pharmaceuticals, Inc. v. Merus N.V., 2017 U.S. App. LEXIS 26542 (Fed. Cir. Dec. 26, 2017) (En banc: Per curiam; Dissent by Newman (joined by Reyna)) (S.D.N.Y.: Forrest) (3 of 5 stars)

Fed Cir denies petition for rehearing en banc. The Court’s mandate, based on the panel opinion (864 F.3d 1343 (Fed. Cir. 2017)), will issue January 2, 2018.

Dissent: Judge Newman restates the concerns set forth in her dissent from the panel opinion. In her view, litigation misconduct, however severe, should not lead to an “adverse inference” of inequitable conduct earlier, during prosecution of the patent.

KEYWORDS: LITIGATION MISCONDUCT; ADVERSE INFERENCE; INEQUITABLE CONDUCT