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March 13, 2008

Comments

It seems, though, that Mr. Manbeck has not disclosed that his firm's website accepts the accolade of being "the leading law firm in generic drug law." See http://www.rothwellfigg.com/news_080301.php. It is no wonder, then, that Mr. Manbeck embraces the school-marmish moralism of the current inequitable conduct doctrine.

A patent is an economic right. If the inequitable conduct has affected the scope of the economic right, then it may be appropriate to render some portion of the patent unenforceable (i.e., the affected claims). But when the doctrine becomes unmoored from economic considerations, courts are merely deciding whether a party is morally worthy to possess a patent.

If the pleadings in recent ANDA cases are any guide, the generic drug industry believes that few innovator companies are morally worthy of the protection that their patents provide them. Therefore, it is no surprise that Mr. Manbeck embraces what amounts to a "moral worthiness" test for inequitable conduct.

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