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April 28, 2010

Comments

Don,

En banc review is way overdue as the Federal Circuit has turned inequitable conduct into a swamp full of green reptiles. The response to Question 3 (standard for materiality) is the key one. After Digital Controls, the Federal Circuit said there have been at least 4 standards articultated (including Rule 56), that failure to satisfy Rule 56 is a problem, but that satisfaction of Rule 56 won't necessarily get you out of the inequitable conduct box. Not a good way to render order out of this chaos called the inequitable conduct doctrine.

I hope some mention is also made in the en banc ruling about reaffirming the view in Star Scientific v R.J. Reynolds Tobacco that even in inequitable conduct is proven, the equities must be balanced to hold the patent unenforceable. After all, inequitable conduct is an "equitable" doctrine. But that seems to get lost in all the rhetoric when inequitable conduct is alleged (as it is in almost every patent suit).

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