Smith & Nephew Loses Appeals Ruling on Wake Forest Patents

Smith & Nephew Plc (SN/) lost an appeals court ruling in which it was accused of infringing two Wake Forest University patents over wound-care treatments.

The U.S. Court of Appeals for the Federal Circuit in Washington today said a trial judge erred in ruling the two patents invalid, and remanded the case to the lower court. The university, which licensed its inventions to Kinetic Concepts Inc., can seek to reinstate a jury verdict it won against Smith & Nephew.

Wake Forest developed the technology that uses a type of suction, or negative pressure, to close large wounds instead of relying on staples or sutures. The Winston-Salem, North Carolina-based school presented testimony that devices with its inventions have been used on more than 3 million patients, and changed the way surgeons treat serious wounds, according to the ruling today.

Mike Barger, a spokesman for closely held Kinetic Concepts, said the company is no longer a party to the case.

A federal jury in March 2010 sided with Wake Forest and Kinetic Concepts that Smith & Nephew’s Renasys-F dressing kit infringed the patents. The jury rejected Smith & Nephew’s claims the patents covered obvious variations of earlier research.

The Federal Circuit said U.S. District Judge Royal Furgeson should have given more deference to the jury’s findings before he ruled the patents invalid.

Next Step

Smith & Nephew, which gets almost a quarter of its revenue from advanced wound management, can raise other invalidity arguments when the case is sent back to a federal court in San Antonio, where Kinetic Concepts is based, the appeals court said in the ruling posted on its website.

Smith & Nephew said it is considering its next step, including a possible petition to have the case heard before the all active judges of the Federal Circuit, which specializes in patent law.

The company’s wound-treatment products “remain on the market and continue to be readily available to our customers,” Smith & Nephew said in an e-mailed statement. “We are determined to defend the right of customers to access a full range of negative-pressure wound-therapy products from Smith & Nephew.”

The case is Kinetic Concepts Inc. v. Smith & Nephew Inc., 2011-1105, U.S. Court of Appeals for the Federal Circuit (Washington.) The lower court case is Kinetic Concepts Inc. v. Bluesky Medical Corp., 08-00102, U.S. District Court for the Western District of Texas (San Antonio).

To contact the reporter on this story: Susan Decker in Washington at sdecker1@bloomberg.net

To contact the editor responsible for this story: Bernard Kohn at bkohn2@bloomberg.net

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