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High Level Of Materiality And Intent Required For Unenforceability Due To Withheld Information

Client Alert | 1 min read | 10.05.06

In Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. DE C.V. , (Nos. 05-1479, -1480 and 06-1002; September 25, 2006), the Federal Circuit affirms the district court's denial of Pigmentos request for holding the patent-in-suit unenforceable for failing to disclose a journal article to the patent examiner. The patent-in-suit relates extracting purified lutein from plants for use in dietary health supplements. The withheld article, published in the journal Poultry Science, discloses methods for obtaining a purified lutein that is not suitable for human consumption. This article was used as the basis for experimentation by Kemin's president, who was not an inventor and was found to be only tangentially involved in the prosecution of the application for the patent-in-suit.

Despite a jury finding that this article was material to the patentability of the patent-in-suit and that it was withheld with an intent to deceive, the district court concluded that the levels of materiality and intent were not high enough to hold the patent unenforceable. The Federal Circuit, relying upon the testimony of Kemin's president that he did not believe the article to be material and his tangential involvement in the prosecution of the application, finds no clear error in the district court's findings of the level of materiality and intent.

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Client Alert | 1 min read | 07.08.26

CAS Board Publishes Final Rule Rescinding CAS 404, 408, 409, and 4117

As part of its ongoing effort to conform the Cost Accounting Standards (“CAS”) to generally accepted accounting principles (“GAAP”), the CAS Board published a final rule rescinding CAS 408 (Accounting for costs of compensated personal absence) and CAS 411 (Accounting for acquisition costs of material).  The CAS Board also rescinded CAS 404 (Capitalization of tangible assets) and CAS 409 (Depreciation of tangible capital assets) but retained certain requirements of CAS 404 and 409, which will be located in new paragraphs of CAS 405 (Accounting for unallowable costs).  Specifically, the CAS Board retained the requirements currently located at CAS 404-50(d)(1), CAS 409-50(e)(5), CAS 409-50(j)(1), and CAS 409-50(j)(4), which the CAS Board explained are necessary to protect the Government’s interests.  Otherwise, the CAS Board determined that the requirements of CAS 404, 408, 409, and 411 overlapped with GAAP such that GAAP “may be applied reasonably as a substitute for CAS to support contract cost and pricing.”...

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