“[I]nequitable conduct includes affirmative misrepresentation of a material fact, failure to disclose material information, or submission of false material information, coupled with an intent to deceive.” Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed. Cir. 1995). These elements must be shown with clear and convincing evidence. Id.

The appeal was the second time Housey Pharmaceuticals asked the CAFC to reverse the Deleware district court’s inequitable conduct determination. In the first round, the CAFC remanded for more information from the district court, which had found -

Dr. Housey actively concealed work from his colleagues, failed to provide clear acknowledgement of his colleagues’ contributions, and knowingly withheld material prior art. [Bayer I, 2003 WL 22953187,] at *15, 2003 U.S. Dist. LEXIS 22411, at *47.

The purpose of the remand is simply to permit the district court to provide any further reason it may have to find Housey incredible.

On remand, the district court again ruled that Dr. Housey had commited inequitable conduct, but provided further reasoning in support of that decision. Regarding the lack of data for Dr. Housey’s “soft agar” experiment (the Table 3 experiment), the district court acknowledged that while the lack of data itself is not evidence of inequitable conduct, Dr. Housey was not forthcoming about that data.

Thus, the district court concluded: “I continue to believe that the clear and convincing evidence of record supports my conclusion that Dr. Housey is not credible and that he committed inequitable conduct before the PTO by presenting fabricated experimental results that were material to the issuance of the patents in suit.” Id. at 582.

Dr. Housey claimed to have conducted an experiment, but had no raw data for it, his co-workers didn't believe it, and one former colleague "testified that he believed that Dr. Housey had invented the numbers."

In addition, the district court credited the testimony of Dr. Housey’s former laboratory colleagues, who testified that they did not see Dr. Housey perform the “soft agar” experiment and that they did not believe he could have done so without their knowledge.

In his web of deception, Dr. Housey caught himself out -

Finally, Housey points to information suggesting that 24-well plates may have been used in the laboratory at times other than when Dr. Housey claims to have conducted the Table 3 experiment. For example, Housey notes Dr. Ueffing’s use of 24-well plates. Dr. Ueffing, however, did not arrive at the laboratory until after Dr. Housey claims to have conducted the Table 3 experiment.

To top it off, Dr. Housey didn't acquit himself well during trial testimony.

Finally, the district court explained: “As the finder of fact who sat through the bench trial, I was required to, and did, make subjective credibility determinations about the witnesses who testified, including Dr. Housey.” Bayer III, 386 F. Supp. 2d at 580. Implicit in that reference to “subjective credibility determinations” is the district court’s observations during trial of the witnesses’ demeanor. Unable to review demeanor, this court has very good reason to defer with respect to credibility determinations. See Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1171 (Fed. Cir. 2006) (“[D]eference is appropriately accorded to assessments of witness credibility because ‘only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.’”) (quoting Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)). In this case, demeanor no doubt played a role in the district court’s credibility determinations, which were otherwise well-supported.