On Tuesday, November 9, 2010, oral arguments were heard en banc by the Federal Circuit in Therasense Inc. v. Becton, Dickenson & Co. Audio is available here.
In Therasense, plaintiff Therasense Inc. (now Abbott Laboratories) alleged infringement of its patents by defendants Becton, Dickenson & Co. and Bayer Health care LLC. Becton and Bayer defended on grounds of noninfringement and invalidity, alleging inequitable conduct during the prosecution of the patents-in-suit.
The district court agreed with the defendants, holding one of the patents-in-suit invalid for inequitable conduct and finding no infringement with respect to two other asserted patents. The Federal Circuit affirmed, but subsequently agreed to hear the case en banc, in part to reconsider the current standard for evaluating inequitable conduct, including whether and when a court may infer deceptive intent based on the materiality of information withheld from, or misstated to, the Patent and Trademark Office during patent prosecution.