In Bristol-Myers Squibb Co. v. Teva Pharma. USA, Inc. (D. Del. Civ. A. No. 10-805-RGA, July 19, 2012), the patentee moved for summary judgment against an inequitable conduct defense. The court denied the motion. The alleged information concerned compound 2'-CDG. The patentee argued that there was no similarity between that compound and the claimed invention, entecavir, and so the information was not material. However, the court denied the motion. In part the court stated:
The inventor is one of several people credited with an article which contains a statement about 2'-CDG's "structural similarity" to entecavir. The inventor, when questioned about the article, said he had neither written nor read it before it was published. Such a statement at least raises a credibility concern. I do not think making the credibility decision on summary judgment in this case is appropriate.
The court went on to state, however:
I have also considered that the issue here involves the state of mind of three individuals abouttwentyyearsago. Itisoftendifficulttoprovesomeone'sstateofmindaboutsomething thepersondidyesterday. Toprovebyclearandconvincingevidencethatapersonintendedto deceive the PTO twenty years ago, in the absence ofany direct evidence that he did so, is about as difficult as climbing Mt. Everest. I cannot say, however, as a matter of law that it cannot be done. See Aventis Pharma SA. v. Hospira, Inc., 675 F.3d 1324, 1334-37 (Fed. Cir. 2012) (affirming a finding of an inventor's intent to deceive in 1990).