Edited by Daniel R. Cahoy and Lynda J. Oswald
Chapter 4: Inequitable conduct after Therasense and the America Invents Act
This chapter examines the dramatic constriction of the inequitable conduct defense to patent infringement accomplished in 2011 by the issuance of the United States Court of Appeals for the Federal Circuit (Federal Circuit) decision in Therasense, Inc. v. Becton, Dickinson & Co. and the enactment of the America Invents Act (AIA). The chapter questions whether Therasense and the AIA have unduly narrowed the inequitable conduct defense and thus undermined the core goals of patent law. Those core goals include the encouragement of innovation, full and early disclosure, and investment in research and development (Pfaffv. Wells Elecs., Inc., 1998). The chapter concludes that Therasense and specific features of the AIA, particularly its adoption of new post-issuance review proceedings and a new “best mode” amendment, will likely operate in tandem to sharply curtail the availability of the inequitable conduct defense and impair the operation of the US patent system.
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