Category: Inequitable Conduct

By Kevin E. Noonan — Co-defendant Bayer Healthcare LLC has submitted its brief in the Federal Circuit's en banc reconsideration of inequitable conduct in Therasense Inc. v. Becton Dickinson & Co.  The brief's basic argument is that the Court's application of the inequitable conduct doctrine needs to be revised in keeping with traditional standards and that…

By Kevin E. Noonan — Happy families are all alike; every unhappy family is unhappy in its own way.Leo Tolstoy, Anna Karenina, Chapter 1, first line The several amicus curiae briefs that have been filed in the en banc rehearing of Therasense, Inc. v. Becton, Dickinson & Co. bring this quote to mind, since none…

By Kevin E. Noonan — Many of the amicus curiae briefs that have been filed in the en banc rehearing of Therasense, Inc. v. Becton, Dickinson & Co. have mentioned (if not bemoaned) the negative effects the Federal Circuit's inequitable conduct jurisprudence has had on the functioning of the U.S. Patent and Trademark Office.  So…

By Kevin E. Noonan — The American Bar Association (ABA) has filed a brief in the Therasense, Inc. v. Becton, Dickinson & Co. case, in support of neither party but arguing forcefully that the current state of the Federal Circuit's jurisprudence on inequitable conduct is in need of correction.  The brief follows a recommendation from the…

By Donald Zuhn — In April, the Court of Appeals for the Federal Circuit decided that the appeal in Therasense, Inc. v. Becton, Dickinson & Co. warranted en banc consideration, and asked the parties to brief ten questions concerning the issue of inequitable conduct (see "Federal Circuit Grants En Banc Review in Therasense v. Becton…

By Kevin E. Noonan — On August 2nd, the Biotechnology Industry Organization (BIO) filed an amicus curiae brief with the Federal Circuit in the Therasense, Inc. v. Becton, Dickinson & Co. case.  The brief, filed in support of neither party ("BIO . . . has no interest in the ultimate disposition of this litigation") urges…

By Kevin E. Noonan — Last Friday, sanofi-aventis and Microsoft joined in filing an amicus curiae brief with the Federal Circuit in the Therasense, Inc. v. Becton, Dickinson & Co. case.  The brief, filed in support of appellants and urging the en banc Court to reverse the three-judge panel's affirmance of inequitable conduct against Abbott,…

By Kevin E. Noonan — The Intellectual Property Owners Association (IPO) filed an amicus curiae brief last week in the Therasense, Inc. v. Becton, Dickinson & Co. case.  The brief, filed in support of neither of the parties to the underlying lawsuit, clearly stated the IPO's position that Federal Circuit jurisprudence on inequitable conduct had…

By Kevin E. Noonan — The idea of a "golden age," almost always some time in the past, is a recurrent theme in history, literature, and myth. It is also the unspoken theme in Abbott's principal brief filed earlier this week in Therasense Inc. v. Becton Dickinson & Co., and that Golden Age has an…

    By Donald Zuhn — Last week, the Court of Appeals for the Federal Circuit issued an order setting a date for oral argument en banc in Therasense, Inc. v. Becton, Dickinson & Co.  The order indicates that oral argument will take place on November 9, 2010 at 10:00 am in courtroom 201. In April,…