Retractable Technologies (NYSE:RVP) said today it filed a petition for a write of certiorari with the US Supreme Court to review an overturned its $352 million anti-trust win over Becton Dickinson (NYSE:BDX).
The decision from the federal appeals court in December sent Retractable Technology shares plummeting, down nearly 50% after the ruling was released. A 3-judge panel of the U.S. Court of Appeals for the 5th Circuit ruled Dec. 2 that RTI’s claim that BD violated a section of the Sherman Antitrust Act was “infirm as a matter of law.”
“First, patent infringement, which operates to increase competition, is not anticompetitive conduct. Second, false advertising is a slim, and here nonexistent, reed for a [Sherman Act] claim. Third, the allegation that BD ‘tainted’ the market for retractable syringes while surreptitiously plotting to offer its own retractable a few years later is unsupported and incoherent,” Judge Edith Jones wrote.
The 5th Circuit also upheld the false advertising claim and sent it back to the U.S. District Court for Eastern Texas, which will decide how much profit BD must disgorge.
The news sent RVP shares down -46.9% to a $1.30-per-share close Dec. 2. BDX shares closed up 0.6% at $165.53 apiece that day. Neither firm nor their lawyers responded to requests for comment.
Little Elm, Texas-based will seek a review from the Supreme court now as it fights the reversal, according to an SEC filing.
The case dates back to 2001, when RTI sued BD for patent infringement, settling for $100 million in 2004. RTI sued again barely 3 years later, alleging patent infringement and anti-trust violations. The case was split, with the anti-trust portion on hold 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 the BD 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 Easter 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.
Material from Reuters was used in this report.