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Impact of Therasense: Defendant Denied Motion to Plead Inequitable Conduct

In Pixion, Inc. v. Citrix Systems, Inc., No. C 09-03496 (N.D. Cal. April 16, 2012), the court denied Citrix’s motion for leave to amend its Answer to plead the affirmative defense of inequitable conduct because Citrix could not “show that the USPTO would have rejected the” patents-in-suit even if the allegedly withheld reference had been disclosed. Pixion’s patents allegedly covered “online conferencing and collaboration systems.”  Citrix alleged “that Pixion failed to disclose references to software named ‘CU-SeeMe’ in any patent applications to which the Patents-in-Suit claim priority or in the prosecutions of” two of the four patents-in-suit.  According to Citrix, deposition testimony of an inventor established that the CU-SeeMe software “incorporated all the claims in the patents-in-suit,” and “was material” and “not cumulative.”  Pixion responded that Citrix’s motion was futile because CU-SeeMe was disclosed to the USPTO in two of the patents-in-suit, and the same examiner had handled all four…

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