Regeneron Pharmaceuticals, Inc., Petitioner v. Merus N.V., SCT Docket No. No. 17-1616 (On petition for writ of certiorari 2018).
Whether a patent right can be fully extinguished based on misconduct committed by the patentee’s counsel during federal district court litigation to enforce the patent right.
Petition. The patentee here argues that inequitable conduct should be limited to situations involving “misconduct before the Patent Office in obtaining a patent.”
In this case, however, a divided panel of the Federal Circuit dramatically expanded the inequitable conduct doctrine. Without ever finding that petitioner intended to deceive the Patent Office, the panel held petitioner’s patent unenforceable under the inequitable conduct doctrine based on purported misconduct by trial attorneys in district court litigation, years after the patent was granted.
When I originally wrote about the decision, I stated that “[t]he case may be a wake-up-call for some litigators who will read through the list of misconduct and see it as only business-as-usual.”