Just sharing a casual observation, not empirical research. I’m plowing my way through a four-inch stack of cases decided since Therasense that cite both it and Exergen. The intended effect of both was to reduce inequitable conduct claims. No idea if they did that, or not, but of the cases where inequitable conduct was raised, so far in maybe 25% of the cases the defense is sticking, at least past the pleading stage.
So, despite the more difficult substantive barriers in Therasense, and the much higher pleading requirements of Exergen, folks are stating claims. Of course, whether they’ll prove them, or whether the CAFC will affirm them, remains to be seen.
One more small data point. I’m about to read, closely, the cases that past muster, and if there’s anything to learn, I’ll share it.