Monday, March 1, 2010

Inequitable Conduct Pleading Need Not Allege Why Undisclosed Prior Art Embodies the Claimed Invention, Why it is Not Cumulative, or

How Examiner Would have Applied It

The court denied plaintiff's motion to strike defendant's inequitable conduct defense based on the alleged failure to disclose an IEEE article comparing plaintiff's product to a preexisting product embodying the patented invention. The court rejected plaintiff's argument that defendant's counterclaim "failed to identify which claims are disclosed in the Article, where the relevant information is found in the Article, why the Article is not cumulative, or how the examiner would have applied the Article to the claims of the [patent-in-suit]" and agreed with defendant's argument that "[plaintiff] does not need [defendant], for purposes of notice pleading, to explain why a three page article comparing [plaintiff's] product to a pre-existing product that embodies the invention claimed in the [patent-in-suit] is not cumulative or how the examiner would have applied it."

Somanetics Corp. v. CAS Medical Systems, Inc., 2-09-cv-13110 (MIED February 25, 2010, Opinion & Order) (Cox, J.)

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