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February 10, 2012

Extreme

6,436,135 typifies the extremities of the broken and corrupt U.S. patent system. Filed in 1974, '135 took 28 years to be allowed (2002). Owing to byzantine U.S. law, it was subject to an interference over who first invented what it claimed. Litigation followed allowance within months. Four years later, a jury found '135 "valid and willfully infringed by Gore." Thus, in slow motion, the travesty began.

Bard Peripheral Vascular v. W. L. Gore (CAFC 2010-1510) precedential; Judges Newman (dissent), Gajarsa (opinion), Linn

The jury awarded Bard lost profits in the amount of $102,081,578.82 and reasonable royalties in the amount of $83,508,292.20, and set a reasonable royalty rate of 10%. Id. at 22-23.

In what it deemed "the most complicated case th[e district] court has presided over," Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc. ("License"), No. 03-CV-0597, slip op. at 1 (D. Ariz. July 21, 2010), ECF No. 1057, the court denied Gore's motions for judgment as a matter of law on inventorship, anticipation, obviousness, written description, and willfulness. Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc. ("Post-Trial I"), 586 F. Supp. 2d 1083, 1099 (D. Ariz. 2008); Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc. ("Obviousness I"), No. 03-CV-0597, 2008 WL 2954187, at *6 (D. Ariz. July 29, 2008). The court also denied Gore's renewed motions for judgment as a matter of law on those issues. Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc. ("Post-Trial II"), No. 03-CV-0597, 2009 WL 886514, at *12-13 (D. Ariz. Mar. 31, 2009); Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc. ("Obviousness II"), No. 03-CV-0597, 2009 WL 886515, at *7 (D. Ariz. Mar. 31, 2009).

The district court awarded Bard enhanced damages by a factor of two, doubling Bard's award from the $185,589,871.02 jury verdict amount to $371,179,742.04. Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc. ("Damages"), No. 03-CV-0597, slip op. at 20, 23 (D. Ariz. Mar. 31, 2009), ECF No. 951. The court also awarded Bard its attorneys' fees and non-taxable costs in the amount of $19 million. Id. at 23. Additionally, the court denied Bard's motion for a permanent injunction, but granted Bard's alternative motion for the imposition of an ongoing royalty. Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc. ("Injunction"), No. 03-CV-0597, 2009 WL 920300, at *4-10 (D. Ariz. Mar. 31, 2009). The court awarded Bard an ongoing royalty with a range of royalty rates from 12.5% to 20% for Gore's various types of infringing grafts. License, slip op. at 15-16.

Affirmed on appeal 2-1.

Judge Newman, in dissent:

The court today holds that a person who performs the requested test of a material that is provided to him for testing for a specified use, can then, when the test is successful, patent the material he was provided, for the use for which it was tested. My colleagues hold that Dr. David Goldfarb, who was provided with Gore-Tex® tubular material for testing as a vascular graft in dogs, can patent as his own the Gore-Tex material that Gore employees provided to him, and assert the exclusive right to the use for which the material was provided. My colleagues hold that Dr. Goldfarb then can enforce this patent against the provider of the Gore-Tex material that he tested. My colleagues on this panel endorse and defend these errors and improprieties, and now rule that Gore is the willful infringer of this improperly obtained patent on Gore's product and use. My colleagues, applying these flawed rulings, affirm that Gore willfully infringed the Goldfarb patent on the product that Gore invented, developed, and commercialized. My colleagues hold that Bard, who purchased Goldfarb's rights, is entitled to all of Gore's profits on all Gore-Tex graft materials. Yet the entire history is permeated by errors of fact and law, lies, inconsistencies, and injustice. My colleagues find no blemish in this history of incorrect law, impropriety, questionable advocacy, and confessed perjury.

Posted by Patent Hawk at February 10, 2012 5:45 PM | Case Law