Pleading Of Inequitable Conduct Intent To Deceive Requires Only Facts From Which It Is Plausible -- Not The Single Most Reasonable Inference --

That The Applicant Had An Intent To Deceive

The court granted defendants' motion to dismiss plaintiff's inequitable conduct claims even though the court disagreed with the pleading standard for intent to deceive argued by defendants. "[Defendant] argues that in order to survive a motion to dismiss, [plaintiff] must plead facts from which 'the specific intent to deceive must be the ‘single most reasonable inference able to be drawn from the evidence.''. . . While the Federal Circuit obviously intended to curb the number of inequitable conduct defenses asserted by accused infringers when it tightened the inequitable conduct standard, the Federal Circuit did not express the desire to adjust the standard for pleading that defense so severely. . . . In order to survive dismissal, the accused infringer must allege facts from which it is plausible that the applicant had an intent to deceive. The inference need not be the most reasonable inference, but merely a reasonable inference beyond the mere possibility that the applicant had an intent to deceive."

Human Genome Sciences Inc., et. al. v. Genentech Inc., et. al., 2-11-cv-06519 (CACD December 9, 2011, Order) (Pfaelzer, J.).

The magistrate judge recommended denying plaintiff's motion to dismiss defendant's inequitable conduct claims and rejected plaintiff's argument that Therasense, Inc. v. Becton, Dickinson, and Co., 649 F.3d 1276 (Fed. Cir. 2011), changed the pleading standard for inequitable conduct. "[Plaintiff] posits that inequitable conduct pleadings must, when taken as true, be 'sufficient to require a finding of deceitful intent in light of all the circumstances.' The Federal Circuit recently reiterated that, even after Therasense, all that is required at the pleading stage is a plausible inference of deceptive intent. . . . [A] pleading that does not show but-for materiality or that bases intent solely on the materiality of the withheld reference would be not survive the pleading stage. However, it does not follow that the pleadings must show by clear and convincing evidence that the patentee had the specific intent to deceive the PTO, i.e., that the specific intent to deceive is the single most reasonable inference able to be drawn."

EON Corp. IP Holdings, LLC v. T-Mobile USA, Inc., et. al., 6-10-cv-00379 (TXED December 13, 2011, Order) (Love, M.J.)