Bard, Motorola, Medicaid, Bullfrog: Intellectual Property

C.R. Bard Inc., a maker of catheters, won a U.S. court ruling that upholds a $371 million patent-infringement judgment against W.L. Gore & Associates Inc.

There was “substantial evidence” to support a verdict that Gore infringed a patent for vascular grafts, the U.S. Court of Appeals for the Federal Circuit in Washington said Feb. 10 in a ruling. Including interest, royalties and fees, Gore owed $783 million as of June, Bard said in a regulatory filing last year.

The case began in 2003 and involves a dispute dating back to 1974 over a tube that helps retain the shape of non-coronary blood vessels using a substance known as ePTFE that is similar to DuPont Co.’s Teflon, according to Bard’s patent 6,436,135. Closely held Gore, a Newark, Delaware-based maker of surgical products and fibers, said it uses the substance for its Gore-Tex fabrics.

Scott Lowry, a spokesman for Murray Hill, New Jersey-based Bard, said the company is pleased with the ruling. Officials with Gore didn’t return telephone calls seeking comment.

A federal jury found in 2007 that Gore infringed a Bard patent and awarded $185.6 million in damages. U.S. District Judge Mary Murguia later doubled that amount, based on the jury’s finding that the infringement was intentional.

The judge also ordered Gore to start paying royalties of 12.5 percent to 20 percent, depending on the type of Gore grafts. The three-judge appeals panel said Murguia acted within her discretion to reject Bard’s request to halt Gore’s sales.

Murguia ruled that Gore should be able to keep its products on the market because “it was in the public interest to allow competition in the medical device arena,” the appeals court said.

The Federal Circuit, which had earlier ruled that a researcher with Gore wasn’t the first inventor, said in its 2-1 decision last week that the judge was correct to rule that the researcher wasn’t a co-inventor either.

The case is Bard Peripheral Vascular Inc. v. W.L. Gore & Associates Inc., 2010-1510, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is Bard Peripheral Vascular v. W.L. Gore & Associates, 03cv597, U.S. District Court, District of Arizona (Phoenix).

Bayer Sues Watson Over Patent for Beyaz Birth Control Pill

A unit of Bayer AG, Germany’s largest drugmaker, sued Watson Pharmaceuticals Inc., accusing the generic-drug maker of violating a patent for Beyaz birth control pills.

Watson, based in Parsippany, New Jersey, is trying to develop a copy of Beyaz in violation of the disputed patent 6,153,401, Bayer Pharma AG and partner Merck & Cie. claimed in court papers filed Feb. 10 in U.S. District Court in Wilmington, Delaware.

Bayer and Merck “are entitled to an award of damages and treble damages for any commercial sale or use” of Watson’s generic version of Beyaz, the companies said.

Bayer, of Leverkusen, Germany, asked a judge to ban the sale of any Watson birth control product based on the patent.

Charlie Mayr, a spokesman for Watson, didn’t immediately return a call for comment.

The case is Merck Cie. v. Watson Pharmaceuticals Inc., U.S. District Court, District of Delaware (Wilmington).

Motorola Mobility Loses Patent Case Against Apple in Germany

Motorola Mobility Holdings Inc., which has won two rulings against Apple Inc. in Germany, failed to win a third in a patent case involving the use of mathematical sequences in mobile telecommunications.

The Regional Court in Mannheim rejected the suit Feb. 10. Motorola Mobility didn’t show that Apple is violating the patent, Presiding Judge Andreas Voss said when delivering the ruling.

The decision ends a winning streak by Motorola Mobility, which has twice prevailed over Apple in the same court. More cases between the two are pending in German courts, including a bid by Motorola Mobility to enforce its first win from December, which forced Apple to briefly remove some older iPhones and iPad models from its online store in Germany last week.

“While we can’t comment on specific details, we will continue to protect our intellectual property,” Jennifer Weyrauch-Erickson, a spokeswoman for Motorola Mobility, said in an e-mailed statement.

Apple spokesman Alan Hely declined to comment.

Google Inc. is buying Libertyville, Illinois-based Motorola Mobility to gain mobile patents and expand its hardware business. Google’s Android operating system is used by smartphones from HTC Corp. and Samsung Electronics Co. that compete with Apple’s iPhone.

Last week’s case is LG Mannheim, 7 O 230/11.

Apple Sues Motorola Mobility to Block Claims in Germany

Apple Inc. sued Motorola Mobility Inc. Feb. 20 in an effort to block Motorola’s patent-infringement claims against Apple in Germany.

Apple, in a complaint filed in federal court in San Diego, said Motorola’s German suit is based on claims that Apple’s use of Qualcomm Inc. components in the iPhone4S violates Motorola’s European patent. The German suit, Apple claims, is a breach of a patent-licensing agreement between Motorola and Qualcomm.

“As a Qualcomm customer, Apple is a third-party beneficiary of that contract,” Apple said in the complaint. Apple asked the court to block Motorola’s suit in Germany.

Motorola spokeswoman Christa Smith declined to immediately comment on the lawsuit.

The case is Apple Inc. v. Motorola Mobility Inc., 12-CV-0355, U.S. District Court, Southern District of California (San Diego).

EU’s Almunia ‘Determined’ to Safeguard Fair Access to Patents

European Union Competition Commissioner Joaquin Almunia said he’s “determined” to prevent companies from using patents to harm competition.

Businesses must offer rivals access to patents used for industrywide standards on fair, reasonable and non-discriminatory terms, Almunia said in a speech in Paris.

EU antitrust regulators are probing Samsung Electronics Co. and Honeywell International Inc. over possible abuse of patents to block rivals.

For more patent news, click here.


‘ELife’ Open-Access Journal First Issue Due Out Summer 2012

The first edition of an open-access journal sponsored by the Howard Hughes Medical Institute, the Max Planck Society and the Wellcome Trust is to be published in summer 2012, according to a statement from the three institutions.

The new journal, to be known as “eLife,” will be published under the Creative Commons Attribution 3.0 license, which means that its content can be shared and used without restriction. Editorial decisions are being made by a team of practicing scientists.

“ELife” is seen by many as a response to the high cost of journal subscriptions and the cumbersome approval process for the submission and publication of scholarly articles.

Meanwhile, the Cost of Knowledge website set up by opponents of Reed Elsevier Plc’s publishing policies, now has 5,291 signatories, up from more than 1,000 that it had Feb. 1.

Papers submitted to the new journal will undergo what its sponsors say is an “open and transparent peer review process” in which papers will be accepted or rejected “as rapidly as possible,” generally with only one round of revisions. Reviewers’ comments will be published anonymously.

Editor-in-chief of the publication is Randy Schekman, a Howard Hughes Medical Institute researcher at the University of California. Mark Patterson, director of publishing at the Public Library of Science, is executive editor.

For copyright news, click here.

Trade Secrets/Industrial Espionage

Judge Rejects Trade Secrets Claim for Budget-Reduction Method

The Idaho Department of Health and Welfare’s argument that the method it uses to cut Medicaid benefits to state residents is a trade secret that must be protected isn’t finding much sympathy from a federal judge in that state.

A suit filed Jan. 18 alleged that 12 Idaho Medicaid recipients were treated unfairly and the state was violating Medicaid regulations by keeping secret the process by which the benefits reductions were calculated. In the complaint, the residents said because of the state’s insistence of secrecy, “even those who appeal their individual budget reductions, contending that their budgets were calculated incorrectly, cannot learn how their budgets were calculated.”

The state’s methodology “is a black box,” akin to a hat from which the state “magically pulls dollar figures,” according to the complaint.

On Feb. 3, U.S. District Judge B. Lynn Winmill issued the first of two temporary orders barring the state from reducing the plaintiffs’ services through the state’s Medical Developmental Disabilities program “without providing adequate and court-approved notice and fair hearing.” He said he issued the order because the plaintiffs were likely to prove that the state’s actions didn’t comply with the Medicaid Act and were likely to bring the plaintiffs “irreparable harm.”

In a second order, issued Feb. 10, Winmill said that the state must make available to the plaintiffs “unaltered and un-redacted copies of the spreadsheets used to compute the individual budget,” and all the materials in each participant’s case files on which an individual assessment was performed.

Additionally, plaintiffs can request previous versions of the state’s budget-calculating tools, and an opportunity to inspect and copy all the materials the department used to train those who make these decisions. The order stands through May 9.

The 12 plaintiffs, who are identified only by their initials, are represented by Howard A. Beledoff and Richard Alan Eppink of Idaho Legal Aid Services Inc.

The case is K.W. v. Armstrong, 1:12-cv-00022-BLW, U.S. District Court, District of Idaho (Boise).


High School Seeks to Register Calaveras Bullfrog Trademark

A high school in Angels Camp, California, that is named for one American literary figure is seeking to register a trademark for an animal made famous by a second, the Calaveras Enterprise reported.

Administrators for Bret Harte High School plan to register its bullfrog logo as a trademark to halt local businesses from selling bullfrog hats and T-shirts without the school’s consent, according to the newspaper.

Images of the “Celebrated Jumping Frog of Calaveras County,” made famous by Mark Twain, are showing up on products sold without permission by “major chains, national chains,” Heath Lane, the school’s athletic chairman told the Calaveras Enterprise.

“Without a trademark, an outside organization pretending to be Bret Harte High could solicit any of our advertising agencies” and the money would not go to the school, Lane said and the newspaper reported.

For more trademark news, click here.

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