W.L. Gore & Associates and C.R. Bard (NYSE:BCR) split a round in their 2nd battle over stent graft patents, according to court documents unsealed yesterday, as Gore appeals its $1 billion loss in another stent graft case to the U.S. Supreme Court.
In that case, dating back to the 1970s, Bard alleged that Gore infringed a stent graft patent. In the 2nd case, Gore turned the tables and sued Bard in 2011, alleging infringement of a pair of patents by Bard’s Fluency Plus and Flair devices, according to a June 17 ruling by Magistrate Judge Christopher Burke of the U.S. District Court for Delaware.
Bard moved for summary judgment, arguing that 2 of the limitations claimed in the Gore patents, thickness and diameter, are indefinite. Murray Hill, N.J.-based Bard also argued that the Fluency Plus and Flair grafts “do not infringe the asserted claims because they do not meet the thickness limitation” and asked the court to exclude an expert witness, according to the documents.
Burke found that “Bard has not shown by clear and convincing evidence that the use of ‘less than’ and ‘about’ creates sufficient ambiguity or a ‘fuzzy zone of uncertainty’ such that the claims at issue are indefinite” and recommended that the court deny summary judgment on indefiniteness grounds.
But the magistrate judge agreed with Bard’s non-infringement claim for 1 of the patents, writing that “Gore has failed to meet its burden with regard to the thickness limitation” in the patent. Burke recommended that the court grant Bard’s motion for summary judgment on non-infringement on 1 of the patents but not the other.
Burke also recommended that the court admit the testimony of the Gore expert witness.
Gore this month asked the U.S. Supreme Court to revisit its $1 billion infringement loss to Bard, saying the high court should determine whether patents must be conveyed in writing.