Monday, September 13, 2010

Inequitable Conduct Pleading Must Allege How Examiner Would Have Used Undisclosed Information

The magistrate judge recommended granting plaintiff's motion to dismiss defendant's inequitable conduct defense. "[Defendant's] inequitable conduct allegations do not satisfy the 'how' and 'why' requirements of [Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir. 2009)] because they do not allege facts sufficient to show specifically why [the inventor's] alleged misstatements were material and how the examiner would have used the information in assessing the patentability of the claims of [one of the patents-in-suit]."

SynQor, Inc. v. Artesyn Technologies, Inc. et al., 2-07-cv-00497 (TXED September 9, 2010, Report & Recommendations) (Everingham, M.J.)

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