The U.S. Patent and Trademark Office (PTO) is currently studying the recently-issued and much-anticipated opinion by the Federal Circuit in Therasense, Inc. v. Becton, Dickinson ; Co. (Fed. In short, the Court tightened up the standards for proving inequitable conduct in a patent case.
In the Therasense case, the Court established that a reference omitted during the prosecution of a patent application is a material reference only if "but for" its exclusion the claim or patent would not have issued.
The prior art cited during the prosecution of this patent application, which included Therasense's own prior issued patent, included membranes that inhibited electrode fouling.
Before making this assertion to the PTO in this case, however, counsel before the European Patent Office in arguing for the prior art issued patent used the same declaration in a (successful) effort to distinguish over another prior art reference that disclosed a test strip having a membrane. Abbott counterclaimed for infringement of the '551 patent and two other patents. The District Court granted summary judgment of non-infringement of the two other patents, but found that the '551 patent was unenforceable as a result of Abbott's failure to submit briefs in the European Patent Office during prosecution of the '551 patent, such briefs pertaining to arguments submitted in support of Therasense's prior art issued patent.
The Court in the Federal Circuit rendered its opinion based on several Supreme Court cases that dealt with inequitable conduct.
In deciding Therasense, the Court opined that an omitted reference is material reference only if "but for" the exclusion of the reference the patent would not have issued.
With regard to the materiality element of inequitable conduct, the Court opined that in order to assert a specific intent to deceive by the Applicant, an accused infringer must prove by clear and convincing evidence that the Applicant acted with specific intent to deceive the PTO. In defining such changes, the PTO may attempt to improve the efficiency of patent prosecution, the quality of patents issued, and/or the costs of patent litigation.
The Therasense Case and USPTO Study Thereof to Assess Impacts on Patent Practice and Procedures
In short, trademarks are your brand.
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