Exergen, Not Therasense, Governs Pleading Standard for Inequitable Conduct

The court denied defendant's motion to amend its answer to include a claim for inequitable conduct where defendant did not plead facts sufficient to support a reasonable inference of a specific intent to deceive. "In [Therasense, Inc. v. Becton, Dickinson and Co., 649 F.3d 1276 (Fed. Cir. 2011)] the Federal Circuit wrote that the specific intent to deceive must be the single most reasonable inference to be drawn from the evidence. Some confusion has arisen as to whether this language applies to a party’s pleading or whether the standard discussed in Exergen applies. Although there is a split of authority on the issue, the Court finds that [Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir. 2009)] sets forth the standard to be used to analyze whether [defendant's] inequitable conduct charge pleads sufficient facts to set forth a viable claim for relief. . . . As a result, the Court will examine whether [defendant] pled sufficient facts from which a reasonable inference can be drawn that material information was not given to the PTO because it specifically intended to deceive the PTO. . . . It is not reasonable to infer that [a named inventor] had a specific intent to deceive the PTO simply because he did not reveal one aspect of the results published in his 1995 article. This is especially true since [defendant] does not allege that [the inventor] had any role or involvement in the prosecution of the [patent-in-suit]."

Bayer CropScience AG v. Dow Agrosciences LLC, 1-10-cv-01045 (DED April 12, 2012, Order) (Schneider, M.J.)