On April 26, 2010, the U.S. Court of Appeals for the Federal Circuit issued an order granting a petition for rehearing en banc of a patent infringement case that involves issues relating to inequitable conduct.
Various Abbott entities (Abbott Diabetes Care, Inc., its predecessor, Therasense, Inc., and its parent, Abbott Laboratories – collectively, “Abbott”) were involved in a suit against medical technology company Becton, Dickinson and Co., and its supplier, Nova Biomedical Corp., in which Abbott alleged infringement of U.S. Patent No. 5,820,551 (the ‘551 patent). Following a bench trial, the district court held that the ‘551 patent was unenforceable for inequitable conduct based on Abbott’s failure to disclose to the U.S. Patent & Trademark Office (PTO) statements about prior art Abbott made to the European Patent Office (EPO) that the district court found to be contradictory to statements Abbott made to the PTO. A panel of the Federal Circuit affirmed the district court’s judgment that the ‘551 patent was unenforceable for inequitable conduct. However, the en banc court granted Abbott’s petition for rehearing.
In its Order, the Federal Circuit requested that the parties file new briefs addressing the following issues:
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