The Future of ‘Egregious Misconduct’ in Patent Cases

Former Chief Judge Randall Rader’s retirement on June 30 leaves a vacancy for the 12th seat of the Federal Circuit. As a result, on the issue of what constitutes a material omission or misrepresentation by an applicant that would render its issued patent unenforceable, the number of active judges remaining from the six-jurist majority of the 2011 Therasense opinion has dwindled to four. With Judge Rader’s original majority occupying only a third of the seats, is the current incarnation of the inequitable conduct defense that the majority barely secured three years ago now at risk of being rewritten at the next en banc hearing?