The Federal Circuit Says


Inequitable conduct may be found where a patentee knowingly failed to disclose to a USPTO examiner contradictory representations made in another forum with respect to prior art. In Therasense, Inc. v. Becton, Dickinson & Co., Nos. 08-1511, -1512, -1513, 1514, -1595 (Fed. Cir. Jan. 25, 2010), the Federal Circuit found U.S. Patent No. 5,820,551 (“the ’551 patent”), owned by Abbott Diabetes Care, Inc. (Abbott), Therasense, Inc.’s (Therasense) successor, to be unenforceable due to inequitable conduct during prosecution. The ’551 patent related to disposable glucose test strips utilizing electrochemical sensors, and its claims were particularly directed to electrochemical sensors lacking a protective membrane.

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