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Therasense v. Becton Dickinson: A First Impression

40 Pages Posted: 9 Jun 2011 Last revised: 3 Jan 2015

Jason Rantanen

University of Iowa - College of Law

Lee Petherbridge

Loyola Law School Los Angeles

Date Written: June 8, 2011

Abstract

This purpose of this essay is to provide an early analysis of some of the most substantial law and policy concerns raised by the very recent en banc decision of the United States Court of Appeals for the Federal Circuit in the now famous Therasense v. Becton Dickinson case. The doctrinal issue central to the case is inequitable conduct, a judicially created doctrine developed to punish patent applicants who behave inappropriately during patent prosecution, the ex parte process of patent creation. The core thesis of this essay is that Therasense could have a much more significant, complex, and nuanced impact on the legal infrastructure of American innovation than the opinion for the court appears to appreciate. In view of these complexities, the court may be too sanguine in its expectations for the instrumental effect of its decision, a decision that holds the potential to erode some of the core pillars upon which the legal infrastructure of American innovation is built.

Keywords: Inequitable Conduct, Therasense, Patent Law, Patent Policy, Innovation Policy, Law and Economics, Patent Prosecution, Patent Litigation, Information Costs

Suggested Citation

Rantanen, Jason and Petherbridge, Lee, Therasense v. Becton Dickinson: A First Impression (June 8, 2011). Yale Journal of Law & Technology, Vol. 14, p. 226, 2012; U Iowa Legal Studies Research Paper No. 11-38; Loyola-LA Legal Studies Paper No. 2012-02. Available at SSRN: https://ssrn.com/abstract=1859764 or http://dx.doi.org/10.2139/ssrn.1859764

Jason Rantanen

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

Lee Petherbridge (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8194 (Phone)
213-380-3769 (Fax)

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