By Rachel Zimmerman of Merchant & GouldMs. Zimmerman practices general intellectual property law with an emphasis on litigation, appellate
advocacy, and client counseling. Her practice has focused on resolving clients' complex patent,
trademark, and copyright infringement, unfair competition, and trade secret misappropriation disputes.
She may be reached by phone at 612-336-4667 or by e-mail at rzimmerman@merchantgould.com
Last month’s denial by the United States Supreme Court of a petition for
certiorari filed by Aventis Pharma S.A. signals continued uncertainty regarding the state of the law of
inequitable conduct. Aventis had petitioned the Supreme Court to review the Federal
Circuit’s decision affirming a district court finding of inequitable conduct in Aventis Pharma
S.A. v. Amphastar Pharmaceuticals, Inc., 525 F.3d 1334 (Fed. Cir. May 14, 2008). Federal
Circuit inequitable conduct cases decided since Aventis, such as Star Scientific, Inc.
v. R.J. Reynolds Tobacco Co., 537 F.3d 1357 (Fed. Cir. Aug. 25, 2008), have applied a
restrictive view of the inequitable conduct defense that is inconsistent with the result in
Aventis. The Supreme Court’s refusal to intervene leaves practitioners
wondering how to reconcile the Federal Circuit’s divergent lines of authority.
In May of 2008, the Feder...
