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Will the Supreme Court Revisit Inequitable Conduct?



By John T. Haran of Sterne, Kessler, Goldstein & Fox P.L.L.C. and Kyle E. Conklin of Sterne, Kessler, Goldstein & Fox PLLC

J.T. Haran is of counsel and Kyle Conklin is an associate in the Mechanical Group at intellectual property law firm Sterne, Kessler, Goldstein & Fox P.L.L.C. in Washington, DC. See www.skgf.com. This article reflects the thoughts of the authors, and should not be attributed to Sterne, Kessler, Goldstein & Fox or its clients. The content is for purposes of discussion and should not be considered legal advice.

UPDATE: As highlighted in the below August 2013 article Will the Supreme Court Revisit Inequitable Conduct?, the Supreme Court asked the Solicitor General to opine on the petition for writ of certiorari in Sony Computer Entertainment America LLC v. 1st Media, LLC, involving the inequitable conduct doctrine. And in September, the Solicitor General submitted an amicus curiae brief urging the Supreme Court to deny the petition. The Solicitor General submits that the inequitable conduct standard articulated in Therasense was correct and that Therasense did not divest district courts of discretion to consider indirect or circumstantial evidence of an intent to deceive. The Solicitor General also argued that the Sony v. 1st Media case was not the right case to revisit the inequitable conduct standard because a meaningful analysis would require a determination of whether the non-disclosed references were material and whethe...

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