Abbott (NYSE:ABT) won’t have to fork over an extra $1.9 million in legal fees rival Becton Dickinson & Co. (NYSE:BDX) is seeking in their long-running patent infringement war over blood glucose test strips.
Ten years ago Abbott subsidiary Therasense sued BD and its supplier, Nova Biomedical, in a series of suits that were consolidated in the U.S. District Court for Northern California. BD and Nova Biomedical won a $6 million judgment in late 2008 against Abbott and its Therasense subsidiary
After Abbott appealed, the U.S. Court of Appeals for the Federal Circuit reversed its earlier decision (but not the $6 million award) and sent it back to the lower court. That court upheld its earlier decision and awarded another $6 million in post-judgment interest, but denied BD’s bid for additional fees, prompting BD to lodge another appeal with the Federal Circuit, according to court documents.
The appeals court split over the verdict, with the majority holding that "the district court did not abuse its discretion by declining to award fees for appeal, rehearing, and remand on the basis that Becton and Nova failed to establish that the appeal itself was exceptional,” according to the documents.
But in a dissenting opinion, Judge Timothy Dyk wrote that BD and Nova won the overall case and are therefore entitled to the extra fees.
"This holding, it seems to me, is contrary to Supreme Court precedent, and will potentially cause problems in future cases. I would reverse and remand for the district court to reconsider the appellate fee requests under the correct legal standard," Dyk wrote. "Becton Dickinson and Nova prevailed on invalidity and noninfringement at both stages of the appeal. They ultimately prevailed on inequitable conduct as well. By establishing their entitlement to relief on the merits of their claims, Becton Dickinson and Nova were thus ‘prevailing parties’ under the standard set forth by the Supreme Court even if they did not completely prevail at each stage."
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