Friday, May 27, 2011

At stake in Therasense: the attorney fees award

The headline on the storey on the Therasense en banc decision of the CAFC in The American Lawyer was Federal Circuit Guts Inequitable Conduct Defense, Patent Plaintiffs Rejoice .

There is mention of a possible appeal to the Supreme Court, but one is reminded of other facts in the case. The relevant claims of the patent of Therasense (Abbott) were found invalid. If the claims are already invalid, the vacating of the unenforceability decision does not alter the infringement issue.

Money wise the issue is an attorneys fees award. The AmLaw story noted: "The only issue here is inequitable conduct, and at stake is the $6 million attorneys fee award," Becton counsel Bradford Badke of Ropes & Gray said.

Because of the differences on interpretation of Supreme Court law between majority and dissent, this case should go to the Supreme Court. Whether it will is a different matter.


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