Judge Stark in the District of Delaware granted defendant's motion to amend its pleadings to include a defense and counterclaim for inequitable conduct based on the patentee’s conduct during an ex parte reexamination. The court found that the defendant had state a plausible claim for relief because plaintiff failed to inform the PTO that its interpretation of the asserted claims was exactly what the court had already rejected. The court found that, “[r]egardless of whether a patentee in all cases has an obligation to disclose a District Court's adoption of an unobjected-to recommended claim construction, or whether a patentee has an obligation to explain the impact of a court's claim construction on arguments the patentee has made to the examiner, under the facts alleged here it is plausible to believe that [plaintiff] intentionally decided not to make these disclosures because [plaintiff] intended to deceive the examiner into believing she was applying the court's claim construction, when [plaintiff] knew she was not, and when [plaintiff] feared application of the court's claim construction could lead the examiner to invalidate its claims."  Masimo Corp. v. Philips Elec. N. Am. Corp., No. 1:09-cv-0080-LPS, Dkt. No. 854 (D. Del. Sept. 2, 2014). Although defendant has not yet proven inequitable conduct, it certainly met its burden to state a plausible claim for relief.

Masimo Corp. v. Philips Elec. N. Am. Corp., No. 1:09-cv-0080-LPS, Dkt. No. 854 (D. Del. Sept. 2, 2014).