As everyone knows, Therasense changed the substantive law of inequitable conduct, requiring but-for materiality (with the "affirmative egregious misconduct") exception, and intent to deceive the office. (Debates rage on some aspects of this, but that's the core.) Exergen, of course, held that Rule 9(b) applies to inequitable conduct allegations, requiring that the "who, what, when, where, and why" be pled.
Yet, I have seen examples of district court opinions finding inequitable conduct that do not, themselves, meet the pleading requirements. It cannot be that findings that would not satisfy Exergen can, nonetheless, support inequitable conduct.
I'm surprised that no one has, as yet, made this argument (that I know of). Exergen provides a roadmap for district court findings and conclusions, and also the means to attack findings of nequitable conduct on appeal when they fail to meet that standard.
Am I missing something?