The Opportunities and Challenges Presented by the Revitalized Defense of Inequitable Conduct to Patent Infringement: Thoughts for Patent Litigators and Prosecutors

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As we have previously chronicled,[1] the defense of inequitable conduct has been reinvigorated by

recent Federal Circuit case law bringing a new vitality to an affirmative defense it previously discouraged as a “plague.”[2] In the latest development on this front, McKesson Info. Solutions, Inc. v. Bridge Medical Inc.,[3] the Federal Circuit underscored that this sea change in approach is comprehensive, broadly applicable to all aspects of the duty of candor owed to the PTO, and is not

contingent on when the conduct at issue occurred. The apparent new regime regarding unenforceability counsels patent litigators and practitioners alike to conform their practices to a more

creative outlook on the duty of disclosure.

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