A federal judge in Massachusetts yesterday added $21 million to the $70 million Neovasc (NSDQ:NVCN) owes Edwards Lifesciences (NYSE:EW) subsidiary CardiAQ Valve in their spat over replacement heart valve technology.
A jury in May awarded $70 million to CardiAQ after finding that Neovasc misappropriated trade secrets in developing its Tiara transcatheter mitral valve replacement device. Edwards inherited the lawsuit when it acquired CardiAQ Valve for $400 million in August 2014.
CardiAQ asked Judge Allison Burroughs of the U.S. District Court for Massachusetts for enhanced damages and an injunction barring Neovasc from pursuing its Tiara program; Neovasc sought a new trial on damages and on trade secrets.
Burroughs found that “some amount of enhanced damages is appropriate” given that the jury found that Neovasc’s misappropriation was willful.
“The same Neovasc employee – Randy Lane – was both the primary developer of Neovasc’s Tiara device and the primary point of contact for CardiAQ. Neovasc took no steps to limit Lane, or any other employee, from working on both projects, despite the obvious conflict and potential for misuse,” Burroughs wrote, according to court documents. “Enhanced damages are particularly appropriate here, where the jury awarded reasonable royalty damages. It is unlikely that in 2009 or 2010, CardiAQ would have actually licensed its trade secrets to Neovasc, had Neovasc asked. The reasonable royalty, therefore, is based on a legal fiction and does not fully compensate CardiAQ. Because of Neovasc’s misappropriation, which now cannot be undone, CardiAQ was compelled to license its technology to Neovasc, at the rate determined by the jury.”
Burroughs also ordered Neovasc to destroy all information sent to it by CardiAQ between June 2009 and April 2010 and to return any CardiAQ prototypes still in its possession, but stopped short of ordering it to cease the Tiara program altogether.
“Neovasc has no valid reason to keep this information. To the extent the information is public, which would allow Neovasc to use it even under the NDA, Neovasc can use public sources to obtain the information. Neither the public nor CardiAQ has an interest in Neovasc retaining CardiAQ’s information and prototypes. Regardless of the fact, as Neovasc argues, that the NDA has expired, Neovasc does not have a right to retain CardiAQ’s confidential information and the injunction is necessary to ‘protect the secrecy of misappropriated information, to eliminate the unfair advantage obtained by the wrongdoer, and to reinforce the public policy of commercial morality,'” the judge wrote.
“[T]he court will not suspend Neovasc’s TMVI program for any amount of time. The $70 million already awarded by the jury, together with the enhanced damages granted in this order, adequately compensate CardiAQ for its injury. The proposed 18-month suspension would be duplicative of the monetary relief, and is not warranted given the uncertainty in the TMVI market, the impact the injunction would have on Neovasc, and the public’s interest in having access to a potentially life-saving technology,” she wrote.
Burroughs also ordered that CardiAQ Valve co-founder, president & COO Brent Ratz (now an R&D VP for Edwards’ TMVR program) and co-founder Dr. Arshad Quadri (the “AQ” in CardiAQ) be added as inventors of a Neovasc patent, ruling that “Dr. Quadri and Mr. Ratz shared with Neovasc the inventive process behind their TMVI project. In the context of 2009, when no one had ever built a successful transcatheter mitral valve device, Dr. Quadri and Mr. Ratz gave Neovasc a front-row view of CardiAQ’s TMVI development, thereby contributing to the conception of the [Neovac patent].”
The judge denied both Neovasc motions for a new trial; for its part, Neovasc pledged to seek a stay on both damages awards until its appeal is complete, saying that process could take as long as a year.
“While we are disappointed with this outcome, we believe this decision affirms Neovasc’s rights to advance the Tiara program and treat patients with this innovative technology and look forward to doing so,” CEO Alexei Marko said in prepared remarks. “We are very pleased with the clinical results to date and will continue to work with selected centers to implant Tiara in suitable patients in our TIARA-I Early Feasibility Trial and compassionate use programs.”