By: Teige P. Sheehan
In May 2011, the Federal Circuit issued a landmark en banc ruling in Therasense, Inc. v. Becton, Dickinson & Co. that redefined the doctrine of inequitable conduct. A judge-made doctrine that evolved from the principle of unclean hands to deny patent rights to those who engaged in deceptive misconduct in obtaining patents, the doctrine of inequitable conduct had become so commonly invoked as a defense in patent litigation that in 1988 the Federal Circuit famously stated that it had become “an absolute plague.”
Reprinted with permission from: Bright Ideas, Fall 2011, Vol. 20, No. 2, published by the New York State Bar Association, One Elk Street, Albany, New York 12207, (1-800-582-2452).