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Inequitable Conduct Defense Stricken for Insufficient Pleading

By William F. Heinze

Thanks to Peter Zura' 27 Patent Blog for posting a copy of Applied Interact LLC v. Continental Airlines, Inc., Civil Case No. 2:07cv341 (January 17, 2008) where the U.S. District Court for the Eastern District of Virginia granted a motion to strike an inequitable condcut defense under FRCP Rule 12 ("the [C]ourt may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter") and Rule 9 ("[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.")

According to Zura, the court agreed with AI that "Continental's Amended Answer fails to state its inequitable conduct defense with particularity because (1) it does not identify any misrepresentation; and (2) it does not identify any specific prior art that was withheld." The pleading "merely described the subject matter of the material omitted but do not state with specificity the documents or information omitted." Additionally, the court ruled that:

Continental's pleading . . . [describes] omissions that relate "to the subject matter [of the patent], namely, the use of computer networks to print at a remote location information generated at a central location and/or information related to the use of computer networks to implement games of random chance." . . . However, this description of the material omissions constituting the inequitable conduct does not provide Plaintiff with "guidance as to the specific [information]" allegedly withheld. . . . While Continental claims some information should have been submitted regarding these subject areas, Continental fails to allege any specific document or information that should have been produced.

[T]he Court additionally concludes that Continental's pleading is defective in so far as it references the entire patent as being affected by the material omissions. Rather, Continental must state with specificity what aspects of the patent were implicated by the complained of material omissions.

Full post as published by I/P Updates on February 11, 2008 (boomark / email).