Connor Romm
Inequitable conduct is a defense to a claim of patent infringement that can invalidate the underlying patent. At its inception, the defense was meant to encourage honest representations in the patent prosecution process. It later morphed into a source of troubling litigation tactics. In May 2011, in Therasense, Inc. v. Becton, Dickinson & Co., the United States Court of Appeals for the Federal Circuit, sitting en banc, sought to address disturbing trends in the doctrine and raised the standard required to prevail on the defense. In July 2017, in Regeneron Pharmaceuticals, Inc. v. Merus N.V., the same court appeared to take a step back from the strict standard for finding intent in its prior decision. Because the plaintiff in Regeneron engaged in both pre- and post-prosecution misconduct, the court adversely inferred specific intent to deceive the United States Patent and Trademark Office. This essay argues that the Regeneron decision should be interpreted as a strictly-defined exception to the heightened standard that the Federal Circuit adopted in Therasense.