A federal appeals court today handed a major win to C.R. Bard (NYSE:BCR), upholding a judgment of willful infringement against W.L. Gore & Assoc. that tacks on an extra $205 million to the $854 million Gore already owed Bard– taking Gore’s tab for infringement of a Bard stent graft patent to more than $1 billion.
It’s the latest development in a decades-long war between Gore and Bard over stent graft technology. Gore alleged that 1 of its engineers, Peter Cooper, invented a key claim in the patent in the early 1970s.
But Judge Mary Murguia of the U.S. District Court for Arizona initially ruled that the patent was invented by Dr. David Goldfarb, who later assigned it to Bard. Her 1st decision boosted Bard’s $185.6 million jury award to $371.2 million, prompting Gore to appeal. The U.S. Court of Appeals for the Federal Circuit upheld Murguia in February 2012 (sending BCR shares up 2%) and affirmed that judgment in June 2012. Gore’s subsequent appeal to the U.S. Supreme Court in October 2012 was denied early in 2013. That July, the U.S. Patent & Trademark Office upheld the validity of the Bard patent.
But in 2012 the Federal Circuit bench tasked Murguia with reviewing her willfulness finding. In October 2013 Murguia upheld that ruling, finding Gore’s infringement willful and declining to revisit her decision on enhanced damages and legal fees and denying Gore’s bid for a new trial. Gore appealed again to the Federal Circuit, which today once again affirmed Murguia.
"In the current proceedings, Gore relied on those facts which showed that the invention was based on a material that Gore invented and that Cooper may have conceived of the invention prior to Goldfarb (though Goldfarb won the patent because he was the first to reduce it to practice). But even if it could have persuaded a jury – which it did not – Gore could not have evaded the legal requirements of joint inventorship. Ultimately, to have stood a reasonable chance of prevailing on this issue, Gore needed to raise new evidence or theories that were not considered in [previously]," Chief Judge Sharon Prost wrote for the majority. "However, as the prior [Federal Circuit] panel noted, ‘Gore’s argument remains unchanged and there is still no evidence that Cooper either recognized or appreciated the critical nature of the internodal distance and communicated that key requirement to Goldfarb before Goldfarb reduced the invention to practice.’ Within the backdrop of the extensive proceedings prior to this litigation, therefore, we agree with the district court that Gore’s position was not susceptible to a reasonable conclusion that the patent was invalid on inventorship grounds."
