In a recent en banc decision, Therasense, Inc. v. Becton, Dickinson and Company, (Fed. Cir. 2011), the Federal Circuit raised the requirement for inequitable conduct in obtaining patents and limited its reach. Citing the need to rein in inequitable conduct allegations, the Circuit found conduct must be both material to patentability and intended to deceive the Patent Office to be considered inequitable.
Under the new rule, accusers must prove a patent would not have issued had the Patent Office known of a misrepresentation, as well as proving specific intent by clear and convincing evidence of a deliberate decision to deceive. Furthermore, even if materiality and intent are proven, a patent may only be found unenforceable if the conduct “resulted in the unfair benefit or receiving an unwarranted claim.”
Balancing the new standard for inequitable conduct, the court did find affirmatively egregious conduct to be material on its face, for instance filing an unmistakably false affidavit.