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Judges Newman and Reyna Argue that Litigation Misconduct does not Demonstrate Intent to Deceive the PTO
On Dec. 26, 2017, Federal Circuit Chief Judge Prost and Judges Newman, Lourie, Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll issued a per curiam order denying a panel rehearing, in Regeneron Pharmaceuticals v. Merus N.V., Case No. 2016-1346. The case was on appeal from the United States District Court for the Southern District of New York in No. 1:14-cv-01650-KBF.
The district court found that U.S. Patent No. 8,502,018 was unenforceable because Regeneron Pharmaceuticals, Inc. (Regeneron) engaged in inequitable conduct. On appeal, a Federal Circuit panel consisting of involving Chief Judge Prost, and Judges Newman and Wallach, affirmed the district court's holding. Regeneron petitioned for both a panel rehearing, which was unanimously denied, and a rehearing en banc, which was denied with Judges Newman and Reyna dissenting. They argued that it was improper for the district court to infer intent to deceive the Patent Office based on subsequent litigation misconduct in an infringement suit. They explained that such an inference conflicted with Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1290-91 (Fed. Cir. 2011) (en banc), which held that showing inequitable conduct in patent prosecution requires both materiality and intent to be demonstrated by clear and convincing evidence based on the applicant's conduct before the PTO.
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