Attorney Argument to PTO May Constitute Inequitable Conduct
Posted In: Sue L. Robinson on March 11, 2008 By Andrew A. Lundgren
In a recent memorandum order, District Judge Sue L. Robinson summarily rejected a request to jettison a party's inequitable conduct defense. Recognizing that "arguments made to the PTO can form the basis for inequitable conduct defenses under certain circumstances," the court denied a motion to dismiss without prejudice to renew.
At least at the motion to dismiss stage, the defendant's claim that attorney argument made to the examiner involved intentional falsehoods about a material reference must stand.
Elan Corp. v. Teva Pharma. USA Inc., C.A. No. 07-552-SLR (D. Del. March 7, 2008) (Robinson, J.).
