The Supremes last month refused to hear an appeal of a lower court’s decision to overturn part of Retractable’s win over BD, which the Little Elm, Texas-based medical device company sued in June 2007, claiming that Becton’s Integra syringes infringe patents covering its competing VanishPoint devices.
A federal appeals court decided in July 2011 to reverse a jury’s 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. That same court later denied Retractable’s bid for a re-hearing, setting the stage for an appeal to the high court.
RTI’s battle began in the early 1990s, when founder Thomas Shaw invented the first retractable syringe after seeing a news program about a doctor who contracted HIV from an accidental needle stick.
Large medical device makers and the GPOs that act as sales liaisons between them and hospitals effectively kept the RTI syringes off the market until the device makers could come up with competing devices, according to a series of lawsuits Shaw and RTI have filed over the years. In fact, the appeal court’s decision could bolster another RTI lawsuit accusing BD of anti-trust violations, the company told Bloomberg.
"BD used Retractable Technology’s own patented technology to maintain their monopoly in the syringe market," RTI lawyer Roy Hardin told the news service. "If you’re monopolist in a marketplace, there are certain things you can’t do."
The antitrust suit, which also accuses BD of false advertising, has yet to go to trial.
"With respect to RTI’s antitrust and false advertising claims, BD cannot estimate the possible loss or range of possible loss as there are significant legal and factual issues to be resolved," according to a Becton Dickinson regulatory filing. "In the event that RTI ultimately succeeds at trial and subsequent appeals on its antitrust and false advertising claims, any potential loss could be material as RTI is seeking to recover substantial damages including disgorgement of profits and damages under the federal antitrust laws, which are trebled. BD believes RTI’s allegations are without merit.