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Judge Andrews denies defendants’ motion to amend answer to add inequitable conduct defense because allegations do not support reasonable inference of intent to deceive

Judge Andrews recently considered defendants’ motion for leave to file an amended answer to add an inequitable conduct defense.  Unimed Pharms., LLC, et al., v. Perrigo Co., et al., C.A. No. 13-236-RGA (D. Del. July 23, 2014).  The proposed amended answer essentially alleged that the inventors and attorneys made inconsistent statements to the PTO during prosecution and to the Court during litigation.  Id. at 2.  Judge Andrews evaluated the allegedly inconsistent statements and found that they merely reflect different conclusions resulting from the application of different legal standards, but, in any event, defendants failed to demonstrate that the statements “support a reasonable inference by any particular individual of specific intent to deceive.”  Id.  Judge Andrews noted that “[e]ven if the inventors and/or applicants were aware of these ‘inconsistent’ statements, I do not find it plausible that they would recognize that the statements were inconsistent, and knowing that, intentionally fail to point them out, with intent to deceive the PTO.”  Id.  Judge Andrews also noted that while the amended answer painted “a detailed picture of the alleged inequitable conduct, . . . length (about 55,000 words) is not a substitute for clarity.”  Id.


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