Judicial analysis of inequitable conduct often appears at an advanced stage of litigation: at summary judgment, in post-trial briefing, or, increasingly, following an auxiliary phase of trial. But how do inequitable conduct claims fair at the opposite end of the litigation spectrum, at the pleading stage? From a litigator’s perspective, what does it take to avoid dismissal on sufficiency-of-the-pleadings grounds?
District of Delaware Magistrate Judge Mary Pat Thynge recently addressed this issue in the context of a motion to amend. Holding that FRCP 9’s particularity requirement does not extend to allegations of how the withheld information is material to the prosecution of the patent-in-suit, the Court reaffirmed the contours of Rule 9 in Delaware:
In this jurisdiction, the standard for Rule 9(b), in light of Rule 8, is not as severe or as specific as [plaintiff] suggests . . . . [T]o meet the requirements of Rule 9(b), [defendant] need only disclose the relevant material information and the acts of the alleged fraud to apprise [plaintiff] of what is being alleged in a manner sufficient to permit responsive pleadings.
In other words, the particularity rule captures only those facts indispensable to eventually demonstrating materiality and deliberate intent. With this data in the litigation, and with the parties on notice of the claim’s boundaries, the Court is equipped to conduct the later-stage analysis of whether materiality and intent have actually been established.