Inherent and But For Materiality

Inequitable conduct defenses are being retooled after a recent decision by the Court of Appeals for the Federal Circuit. See 08-1511.pdf on http://www.cafc.uscourts.gov/. Therasense and Abbott won their appeal of a district court finding of inequitable conduct, but the appellate court took this opportunity to adopt a new standard for materiality.

The Court of Appeals for the Federal Circuit has changed the materiality standard for acts of omission before the patent office to "but for" materiality, while apparently adopting "inherent materiality" standard for sufficiently "egregious" affirmative acts, such as fraudulent affidavits and schemes to defraud the patent office. However, a "sliding scale" of materiality and intent is rejected by the entire panel. How will "egregious" affirmative acts be distinguished from affirmative acts that are not egregious? To be determined, if the United States Supreme Court allows the majority opinion to stand long enough for egregiousness to be litigated.