New Take on Patents Shakes Up Abbott-Becton Dickinson Case

A federal appeals court declared this week that “inequitable conduct” should be used to invalidate a patent only if materials information was withheld in order to obtain the patent. The decision is expected to make the invalidation of patents due to application errors more difficult.

The decision could impact a lawsuit filed by Abbott Laboratories against Franklin Lakes, N.J.-based Becton Dickinson & Co. and Leverkusen, Germany-based Bayer HealthCare LLC. Abbott claims both companies infringed its patents for disposable blood glucose test strips.

The court reversed a previous edict that ruled the test strips patent unenforceable due to missing disclosures. According to discovery, however, contradicting information was supplied to the United States and Europe patent offices.

Abbott, based in Abbott, Ill., argued that companies should not be penalized for errors that do not affect the issuing of a patent.

“We are pleased that the Federal Circuit has tightened the standards for finding inequitable contact, and reversed the decision that found our patent unenforceable,” said Scott Stoffel, a spokesperson for Abbott.

It is estimated that 80 percent of patent lawsuits include allegations of unfair dealings with the patent office. These allegations have “plagued not only the courts but also the entire patent system,” the Federal Circuit said in a statement.

“It’s a game changer,” said Charles Shifley, a patent lawyer with Banner & Witcoff Ltd. in Chicago, Ill. “The last place for a scoundrel who was found to infringe and couldn’t probe invalidity was to throw mud at the patent lawyer. This will rein that in.”