By Salvatore P. Tamburo and Daniel P. Archibald
Salvatore P. Tamburo is a partner in the intellectual property practice of Dickstein Shapiro LLP. His practice focuses on intellectual property litigation, but also encompasses IP licensing, counseling, patent prosecution and infringement/validity/enforceability opinions. Mr. Tamburo can be contacted at firstname.lastname@example.org.
Daniel P. Archibald is an associate in the intellectual property practice of Dickstein Shapiro LLP. His practice focuses on patent counseling and enforcement, as well as litigation matters, including managing discovery and preparing motions and briefs. Mr. Archibald can be contacted at email@example.com.
Some have opined that the Federal Circuit, in deciding Exergen Corp. v. Wal- Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir. 2009), created a new, heightened inequitable conduct pleading standard that would lead to the demise of inequitable conduct as we know it. Thus far, this does not appear to be the case. 1 However, Exergen certainly has clarified the existing standard for pleading inequitable conduct and confirmed that a pleading must identify the specific who, what, when,