Gore wins round in stent graft bout with Bard

W.L. Gore & Associates won a round against C.R. Bard (NYSE:BCR) in an ongoing stent graft patent validity battle as a Delaware federal judge upheld the validity of 2 Gore stent graft patents.

The court ruled that Gore’s patent on stent graft devices in tubes less than 0.1 millimeter was valid, rejecting Bard’s invalidity argument, according to court documents published yesterday.

“Finally, the Court agrees with the Section 112 Report’s statement that the Court has ‘already considered and rejected’ Bard’s arguments regarding enablement and adequate description of the ‘less than about 0.10 mm thick’ limitation. Therefore, the Court overrules Defendants’ objection with respect to this limitation and determines, as a matter of law, that the ‘less than about 0.10 mm thick’ limitation is enabled and adequately described in the patent’s specification,” U.S. District Judge Leonard Stark wrote.

The judge allowed for some testimony from Bard expert witness Dr. Enrique Criado, but struck portions involving Dr. Criado’s incorporation to his previous expert reports, as well as several other sections of his report.

“Second, Dr. Criado improperly considered “additional materials” attached as Exhibit B to his report. Dr. Criado was not permitted to rely on these additional materials, which include the opinions of another expert, Dr. Leonard. Dr. Criado was permitted simply to “set out in writing the very opinion that Ms. Stamm has been relying on all along.” (Id.) Dr. Leonard’s opinions did not exist before Dr. Criado’s conversations· with Ms. Stamm,” Judge Stark wrote.

The court found no willfull infringement by Bard in the case, saying that “here, Defendants have asserted objectively reasonable non-infringement and invalidity defenses,” according to court documents.

Gore was granted its motion for summary judgement on the no invalidity claim, and the court further barred Bard from bringing up indefiniteness at trial.

“Further, having reviewed the parties’ letter of November 30, 2015 (D.I. 484), IT IS ORDERED that the asserted claims have already been found not to be invalid as indefinite and Bard will not be permitted to present evidence or argument relating to indefiniteness at the jury trial. In connection with summary judgment, the Court has already concluded that the asserted claims are not indefinite. The Court does not agree with Bard that there is a factual dispute related to whether “the method of measurement is outcome determinative” and that this dispute must be resolved before indefiniteness can be decided,” Judge Stark wrote.

“Bard’s arguments regarding the alleged ‘outcome determinative’ nature of the dueling experts’ methodologies for measuring thickness raise issues of infringement that may be heard and decided by the jury. An accused product may infringe at one point in time and, after manipulation of some kind, cease to infringe at another point in time. In this case, the “0.10 mm” limitation may be met by the accused products at certain times post-affixation but not at others. While Bard may present evidence and make arguments to this effect in the context of infringement, it may not do so in relation to indefiniteness, as the Court has resolved indefiniteness in this case.”

In October, the U.S. Supreme Court declined to review W.L. Gore‘s infringement loss to C.R. Bard over stent graft patents, leaving Gore on the hook for more than $1 billion in damages owed to Bard.

After the Federal Circuit Appeals Court in January upheld a judgment of willful infringement, tacking on an extra $205 million to the $854 million already owed, Gore petitioned the Supremes for a writ of certiorari. The high court declined the petition without comment yesterday.

In May Bard said it received a willfulness damages payment of $209 million from Gore, which had asked the Federal Circuit for a rehearing and an en banc rehearing; the appeals court rebuffed Gore without comment in April.

The case dates all the way back to the early 1970s, when a Gore engineer named Peter Cooper invented a key claim in the patent, Gore alleged.

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