The Software IP Report
Inequitable Conduct After Therasense: Definitely Harder to Prove
By Charles Bieneman
Categories: Inequitable Conduct, The Software IP Report
Specific intent to deceive the USPTO did not exist where an inventor removed mention of a reference from his patent application, and then testified that the “reference was cumulative or merely provided background information.” Imura International U.S.A., Inc. v. HR Technology, Inc., No. 08-2220 (D. Kans. April 24, 2012). The party asserting inequitable conduct also failed to show materiality under the but-for standard of Therasense. This case is worth noting as yet another example of how Therasense has had a tangible, limiting impact on assertions of inequitable conduct. Asserting inequitable conduct is unquestionably a harder defense to succeed upon than it used to be.