Inequitable Conduct Claim Based on Violation of Protective Order Requires Pleading with Specificity

The court granted plaintiff's motion to dismiss defendant's unenforceability counterclaim based on alleged violations of protective orders in two previous actions between the parties. "It is not clear from [defendant's] pleadings whether it seeks relief under the doctrine of inequitable conduct for actions perpetrated by [plaintiff] against the PTO or for fraud perpetrated by [plaintiff] against [defendant]. Either way, the gravamen of [defendant's] allegations remains the same: that [plaintiff's counsel] performed strategic prosecution activities after receiving [defendant's] highly confidential information, in direct violation of the protective orders in the First and Second Actions. . . . [T]o render [plaintiff's] patents unenforceable, [defendant] . . . must identify the specific who, what, when, where, and how of the alleged violations of the protective order. . . . [Defendant's] pleadings do not include sufficient facts to establish how [plaintiff's counsel] allegedly violated the protective orders or the details of his violations. . . . By alleging that [he] conducted patent prosecution for [plaintiff] and that he subsequently gained access to [defendant's] confidential discovery materials as litigation counsel, [defendant's] pleading lays out some of the necessary preconditions for a violation of the protective orders. But without additional, specific facts demonstrating that such a violation did occur, [defendant's] pleadings do not satisfy the particularity requirements of Rule 9(b)."

MaxLinear, Inc. v. Silicon Laboratories Inc., 3-13-cv-01164 (CASD September 16, 2013, Order) (Huff, J.)