Attorney Argument Was Not Misrepresentation Sufficient To Support Inequitable Conduct

The court granted with prejudice plaintiff's motions to dismiss defendant's inequitable conduct counterclaim and to strike defendant's inequitable conduct defense because defendant failed to allege a misrepresentation. "[Defendant's] inequitable-conduct contentions appear to be little more than an ineffective attempt to dress up a garden-variety invalidity defense, which [defendant] has already pleaded as its second counterclaim and third affirmative defense." "It is well-settled that an applicant's interpretation of prior art does not amount to misrepresentation unless the misrepresentation constituted genuine misrepresentation of a material fact. . . . [Defendant] concedes that [plaintiff] disclosed the [prior art patent] in its application for the patent-in-suit] to the PTO. Hence, the examiner had the opportunity to review the applicant's interpretation of the [patent-in-suit] before determining whether to accept or deny the [patent-in-suit's] application. . . . [Defendant's] disagreement with the applicant's interpretation of the [prior art] Patent does not convert [plaintiff's] attorney argument into a misrepresentation."

Lakim Industries, Inc. v. Linzer Products Corporation, 2-12-cv-04976 (CACD November 7, 2012, Order) (Wright, J.).