Inequitable Conduct

Inequitable Conduct

Inequitable Conduct

Therasense requires but-for materiality and specific intent to deceive, both proven by clear and convincing evidence. The defense renders the entire patent unenforceable and may extend to related patents.

The standard was tightened substantially in 2011.

Alternative Names:

Inequitable Conduct Defense|Patent Fraud Defense

Why it Matters?

Therasense sharply reduced viable claims by requiring but-for materiality, meaning the Office would not have allowed the claim had it known, and by eliminating the sliding scale that permitted inferring intent from high materiality. Both elements now require independent proof. The defense retains value where established because it renders the entire patent unenforceable and supports an exceptional case fee award.

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Related terms

Frequently asked questions

What did Therasense require?

What did Therasense require?

But-for materiality and independently proven specific intent, eliminating the sliding scale that inferred intent from materiality.

Why does the defense retain value?

Why does the defense retain value?

Because it renders the entire patent unenforceable and supports an exceptional case attorney fee award.