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Finding of inequitable conduct affirmed, Judge Rader expresses concern over resurgence of defense

By McKee, Voorhees & Sease, P.L.C.

In a decision today, the Federal Circuit affirmed a district court's finding of inequitable conduct resulting from Rule 132 declarations that were used to overcome obviousness and anticipation rejections. The declarations used a difference in half-lives to distinguish the claimed composition over the prior art, however, it failed to indicate that the comparative half-lives were calculated using different initial dosages. The court determined that, despite having the underlying raw data before the examiner, the failure to explicitly indicate the difference was sufficient to support the finding of inequitable conduct.

Judge Rader filed a dissent focusing on a resurgence of the inequitable conduct defense and suggested the court revisit and reinvigorate the holding in Kingsdown which stemmed the earlier "plague" of inequitable conduct claims.

More detail of Aventis Pharma S.A. v. Amphastar Pharms., Inc. after the jump.

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Full post as published by FileWrapper on May 14, 2008 (boomark / email).