Fourth Affirmative Defense In-Equitable Conduct.
(Thank You Pookie)
The 369 patent is un-enforceable as a result of inequitable conduct arising from plaintiffs and or plaintiffs councils intentional failure to disclose relevant prior art that was material to the patentability of the claims of the 369 patent.
Plaintiff was specifically aware of prior art including prior invention material to the patentability of the claims of the 369 patent before and during prosecution of the 369 patent.
Nevertheless upon information and belief plaintiff intentionally failed to disclose such material prior art to the us patent and trademark office USPTO thereby committing fraud on the uspto.
More specifically one of the inventors of the 369 patent Mr. Brian Curtis attended and FDA advisory board meeting for the process of Analytical Technologies subcommittee of the Advisory Committee for the Pharmaceutical Science held February 25 and 26 Curtis
Mr. Curtiss was an official industry guest participant of the FDA Advisory Committee for Pharmaceutical Science and was designated as a member of the Process Analytical Technology (PAT) Subcommittee working Group.
In such capacity he received testimony on Near Infra red NIR applications in pharmacy practice.
During the meetings among others things Pfizer Cooperation made a presentation entitled and industry perspective on the potential for "Emerging Process Analytical Technologies"
The presentation among other things included a detailed discussion of the use of NIR or pharmaceutical compounds.
In particular one of the presentation slides was entitled NIR Tablet Transmission Device.
This slide illustrated how the composition of a tablet may be analyzed using a NIR spectrum
Another presentation entitled Total Quality Management System (TQMS) was presented by AstraZeneca during the February 26 and 26 meetings.
The presentation also included a detailed discussion of the use of NIR analysis of pharmaceutical compounds.
Slides of this presentation show among other things a TQMS analyzer capable of analyzing tablets.
Plaintiff plaintiffs councils and Mr.,. Curtis all failed to disclosed the existence of this Prior Art which is material to the patentability of the claims of the 369 patent to the USPTO during prosecution of the 369 patent. In fact shortly after the FDA Advisory Board Meeting, Plaintiff rushed to the USPTO to file its alleged "own" patent application ) (The application for the 369 Patent) and did not inform the USPTO of for example, the Pfizer and the Astra Zeneca presentations.
Moreover, Upon information and belief no Pfizer or Astra Zeneca presentations upon information and Believe no Pfizer or Astra Zeneca individuals were named as inventors on the 369 patent. To the extent that incorrect inventors have been identified with the intent to deceiver the USPTO such would constitute fraud by Plaintiff on the USPTO...
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