Inequitable Conduct After Therasense: Definitely Harder to Prove

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.

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