Defendant's defense of inequitable conduct was not futile for failure to allege materiality simply because the PTO had information before it that could be used to determine the accuracy of the alleged misrepresentation. "It is clear that a misrepresentation that is contradictory to information that is not presented to the examiner is an intentional material misrepresentation. It is a much closer question when the patentee makes a statement contradictory to information that is actually before the PTO. Two Federal Circuit cases that have addressed this issue came to differing conclusions based on whether the PTO examiner actually looked at the information that was the subject of the inequitable conduct. . . . Based on these lines of cases, this Court cannot adopt or apply a bright-line rule that, if the PTO had the information to ascertain the veracity of the alleged misstatement, the misstatement is not material."
Synovis Life Technologies, Inc. v. W.L. Gore & Associates, Inc., 0-07-cv-01396 (MND March 19, 2009, Order)
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