Patent Law | Expert Legal Commentary
December 7, 2009
Exergen v. Wal-Mart: Raising the Pleading Requirement for Inequitable Conduct
Exergen Corp. v. Wal-Mart Stores Inc.
By
Yuri Mikulka and Thomas F. Zuber of Zuber & Taillieu LLP
The Federal Circuit has established a heightened pleading requirement for claims of inequitable conduct, requiring more than “a mere showing that art or information having some degree of materiality was not disclosed.” In Exergen Corp. v. Wal-Mart Stores Inc., 575 F.3d 1312, 1331 (Fed. Cir. 2009) (cit. omitted), the Court held that a claim of inequitable conduct must specifically identify the who, what, when, where, why, and how of the material misrepresentation, plus allege sufficient fact to allow the court to infer both the knowledge and intent to deceive required for a finding of inequitable conduct. The opinion may reflect an effort by the Court to curtail the often-indiscriminate use of inequitable conduct claims by patent infringement defendants.
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About the Authors
Yuri Mikulka is a Partner of Zuber & Taillieu LLP, and chairs its litigation department.
Thomas F. Zuber is a Partner of Zuber & Taillieu LLP, focusing on intellectual property protection and exploitation.
Image Credit: ©iStockphoto.com/ EduardHarkonen
View a PDF of the judicial opinion