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What to Do About McKesson?

By Charles A. Bieneman

Charles A. Bieneman is a partner with Rader Fishman & Grauer, PLLC, a firm specializing in intellectual property matters.  Mr. Bieneman can be reached at 248-594-0648 (

The Return Of The Inequitable Conduct Plague

Two years ago, picking up where it had left off in Dayco Products, Inc. v. Total Containment, Inc.,1 the Federal Circuit dropped another inequitable conduct bomb on the patent world in McKesson Information Solutions Inc. v. Bridge Medical, Inc.2   In Dayco Products, the Court had held that failures to disclose related co-pending applications, and substantially similar rejected claims, were material.3  Four years later, the McKesson Court, faced with what the Court plainly considered to be egregious facts, upheld findings of inequitable conduct, i.e., of materiality and deceptive intent, based on a failure to disclose items from the file histories of related cases during the prosecution of a patent application.4  Now, in the wake of the Federal Circuit’s decision in ...

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