Retractable Tech to appeal verdict in BD false advertising case

Retractable Technologies (NYSE:RVP) said late last week it is looking to appeal a decision in a false advertising case against Becton Dickinson & Co. (NYSE:BDX) after a judge last month ruled in BD’s favor.

The company said it also filed a motion to alter or amend the judgement which ordered that the company take nothing in its suit against BD.

The Little Elm, Texas.-based company said it is looking to “require BD to notify end users of the facts relating to syringes, as required by the original injunction in the case,” according to an SEC filing posted this week.

The dispute dates back to 2001, when RTI sued BD for patent infringement that settled for $100 million in 2004. RTI sued again barely 3 years later, alleging further patent infringement and anti-trust violations. That case was split, with the anti-trust portion stayed while the patent infringement claims were litigated. A federal appeals court decided in July 2011 to reverse an earlier jury finding that both the 1m and 3ml sizes of BD’s Integra retractable syringe infringed the Retractable patent, ruling that only the smaller size trespassed on the intellectual property.

The anti-trust phase of the proceedings began in 2010; eventually BD was found to have advertised false claims that its Integra, Safety-Lok, SafetyGlide and Eclipse safety syringes boast the “world’s sharpest needle” and about the amount of “waste space” in RTI’s VanishPoint syringe. In September 2013 a jury found for RTI, awarding $113.5 million after finding that BD violated the Lanham Act’s false advertising proscription.

Franklin Lakes, N.J.-based BD later lost an initial bid to toss the case, after the Eastern Texas court ruled that infringement can constitute anti-competitive behavior. In October that court declined BD’s bid to overturn the verdict and ordered the company in January 2015 to pony up more than $352.2 million in damages, including more than $11.7 million in attorneys’ fees, plus pre- and post-judgment interest and costs.

But in December 2016 the U.S. Court of Appeals for the 5th Circuit ruled that RTI’s claim that BD violated a section of the Sherman Antitrust Act was “infirm as a matter of law,” but upheld the false advertising claim, sending it back to the U.S. District Court for Eastern Texas for a decision on how much profit BD must disgorge.

That, it turns out, it zero, according to Judge Amos Mazzant, who ruled that BD’s notification of more than 750 distributors, 10,000 employees and all the major group purchasing organizations about the claims’ inaccuracy was sufficient last month.

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