On October 1, 2018, the U.S. Supreme Court declined to review an appeals court decision that substantially expands the “inequitable conduct” defense and thereby throws into question the continued viability of numerous patents. WLF had filed a brief urging that the Court grant review, arguing that the inequitable-conduct doctrine is being invoked far too frequently to strike down patents for relatively trivial errors. WLF asserted that patents should never be invalidated on inequitable-conduct grounds in the absence of “clear and convincing” evidence that the patentee withheld documents from its patent application with “intent to deceive” the Patent and Trademark Office. The alleged infringer presented no such evidence in this case because the trial judge used her sanctioning power as a substitute for a trial on the merits: she ruled that the patentee’s counsel engaged in misconduct during trial and, as a sanction, declared the patentee guilty of inequitable conduct.
WLF had filed an amicus brief on September 27, 2017 in the U.S. Court of Appeals for the Federal Circuit supporting Regeneron’s petition for rehearing en banc.