February 16, 2006

Ferring B.V., et al. v. Barr Laboratories, Inc. (Fed. Cir. 2006)

On February 15, 2006, the Court of Appeals for the Federal Circuit upheld the decision of the Southern District of New York granting summary judgment to the plaintiff, Barr Laboratories. The Federal Circuit affirmed the grant of summary judgment on the issue of inequitable conduct, noting that the use of declarations of interested parties to support an argument during the prosecution of U.S. Patent No. 5,407,398 was both material and done with the intent to deceive. The court further noted that the lower court did not abuse its judicial discretion in finding inequitable conduct. As such, the court did not address the S.D.N.Y. grant of summary judgment for non-infringement as it affirmed the lower court on other grounds. The court concluded with a discussion of objectivity during the patent prosecution process, noting that if a declarant is to support a particular contention during prosecution, any affiliations of the declarant with the rights holder of the application need to be disclosed to the patent office. This case discusses the standard of review of a lower court's finding of inequitable conduct, as both the majority opinion and Judge Newman's dissent provide case law reviews on the topic.

The Federal Circuit decision: LINK
U.S. Patent No. 5,407,398: LINK


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Mark Reichel
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I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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