48:2 Specifically Fighting Inequitable Conduct

Comment

Abstract

Inequitable conduct is often raised in modern patent litigation, shifting the focus of the litigation from the invention to the moral character of the applicants. This shift in focus costs courts substantial time and resources. In an attempt to curb overuse of the inequitable conduct defense, the Federal Circuit—via Kingsdown—implemented procedural changes affecting the likelihood of success on appeal. Perhaps not satisfied with the continued popularity of the inequitable conduct defense, the Federal Circuit’s recent ruling in Exergen also gave district courts a procedural weapon for combating the excessive pleading of inequitable conduct. This Comment discusses the nature of these procedural changes related to the inequitable conduct defense and argues that the Exergen changes are congruent with the recent Supreme Court precedent of Twombly and Iqbal.