Following a bench trial, the court found plaintiff's patent for the brain cancer drug Temodar® unenforceable due to prosecution laches and inequitable conduct. "[T]he 'ends' - commercialization of a very successful cancer drug - do not justify the 'means' employed by [plaintiff] in this case. Taken in the totality, this case involves eleven patent applications, ten abandonments, and no substantive prosecution for a decade. The court rejected plaintiff's argument that "the absence of 'intervening rights' precludes [defendant's] prosecution laches defense. . . . Nowhere in [Symbol Technologies, Inc. v. Lemelson Medical, Education & Research Foundation, 422 F.3d 1378 (Fed. Cir. 2005)] did the Federal Circuit affirmatively impose a particular requirement that a competitor have invested in the technology claimed in order for prosecution laches to apply.
Cancer Research Technology Ltd. v. Barr Laboratories Inc. et al., 1-07-cv-00457 (DED January 26, 2010, Opinion) (Robinson, J.)