By Memorandum Order entered by The Honorable Leonard P. Stark in Softview LLC v. Apple, Inc. and AT&T Mobility LLC, Civil Action No. 10-389-LPS (D.Del., September 30, 2011), the Court granted plaintiff Softview’s motion to strike the original and proposed amended inequitable conduct defenses of defendants Apple and AT&T Mobility because both the original and proposed amended pleadings containing the inequitable conduct defense failed to adequately allege scienter. The Court, citing to the Federal Circuit's Opinion in Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1330 (Fed. Cir. 2009) noted that an inequitable conduct pleading “must allege facts ‘giv[ing] rise to a reasonable inference of scienter, including both (1) knowledge of the withheld material information or of the falsity of the material misrepresentation, and (2) specific intent to deceive the PTO’).” Id. at 2.

Upon evaluation of defendants’ pleadings, the Court concluded that defendants’ theory of inequitable conduct is based on a “mere disagreement with Softview’s prosecution counsel on whether certain amendments impermissibly added new matter” and such disagreement does not give rise to a reasonable inference that Softview’s counsel knew he was amending to add new matter and intended to deceive the PTO of this fact. Id. Accordingly, the Court found that neither the original or proposed amended pleading sufficiently set forth the required scienter element of  inequitable conduct for an invalidity defense. Id. at 3.

A complete copy of the Court’s Memorandum Order is attached.