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Therasense May 25, 2011

Posted by Brian Schar in Federal Circuit.
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My first take on the Therasense opinion, released today, is generally positive.  The Federal Circuit has set out a bright line rule as to what is material with regard to inequitable conduct, which is good. 

However, Therasense is contrary to the “cite everything” requirement of McKesson, and the Therasense opinion acknowledges that a number of prior precedential Federal Circuit cases apply a different standard.  The Court sat en banc, meaning that it could overrule prior inconsistent precedent.  However, Therasense did not expressly overrule McKesson or other now-inconsistent cases.  I need to find my litigator hat and figure out what this means with regard to earlier inconsistent precedential opinions, or better yet just ask a litigator if now we can finally stop the madness of McKesson.

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Comments»

1. patent litigation - May 30, 2011

What good news that the CAFC is finally making a concrete effort to, as Dennis Crouch put it, “cure the ‘plague’ of inequitable conduct pleadings” in patent litigation. It’s pretty major that a finding of inequitable conduct no longer automatically serves to invalidate a patent. That part of the ruling should itself prove quite effective in immediately reducing the number of IC pleadings. It’s about time. Bravo.


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