A petition for cert was filed in a decision by Judge Linn, 1st Media, LLC v. Electronic Arts, Inc., 694 F.3d 1367 (Fed. Cir. 2012), asserting error essentially in Therasense's cabined view of inequitable conduct. See Sony Computer Entertainment America LLC v. 1st Media, LLC, Supreme Court No. 12-1086. The Solicitor General has filed a brief recommending against cert. The petitioner's question presented was:
"Did the Court of Appeals for the Federal Circuit err in restricting district courts' equitable discretion in evaluating patent unenforceability, contrary to this Court's precedent in Keystone Driller, Hazel- Atlas, and Precision Instrument, by applying a rigid test that (a) forecloses district courts from considering the entire circumstantial record; and (b) precludes district courts from granting equitable remedies where a patent applicant has violated the PTO's duty of candor."
I filed an amicus brief in Therasense, and no one listened, but I still hold a lot of the same views expressed there.