Danvers, Mass.-based Abiomed initially sued Maquet in May 2016, asking Judge Dennis Saylor of the U.S. District Court for Massachusetts for a judgment of non-infringement of a trio of patents; counter-suits later brought the number of disputed patents to six. While that case was proceeding, another Maquet patent issued – U.S. patent No. 9,789,238 covering a “guidable intravascular blood pump and related methods” – which it tried to add to the original suit.
After Abiomed won its bid to block the addition of the ‘238 patent, Maquet in November 2017 filed another lawsuit alleging infringement of the new patent. In its counter-claim to the second lawsuit, Abiomed included a third-party claim against Getinge, which in turn moved to dismiss for failure to state a claim, according to court documents.
Judge Dennis Saylor IV of the U.S. District Court for Massachusetts yesterday agreed with the Swiss company, finding that Abiomed failed to state “a plausible claim that Getinge has ‘substantial rights’ in the patent sufficient to create a case or controversy between Abiomed and Getinge.”
“Whether or not Getinge once had rights in an ancestor application of the application that later issued as the ’238 patent, the third-party complaint does not allege any written agreement granting Getinge any rights in the ’238 patent itself,” Saylor wrote. “Instead, it concedes that Getinge ‘purported to cause title in the application and patents to be assigned to Maquet,’ and attaches the ’238 patent, which lists on its face ‘Maquet Cardiovascular LLC, San Jose CA (US)’ as the assignee as of the date it was issued, October 17, 2017. Abiomed does not allege that title to the ’238 patent has been assigned away from Maquet since its issuance. And Getinge can have no rights to the patent absent a written agreement granting it rights.
“In circumstances where there is a controversy as to who has ‘substantial rights’ to a patent, courts have uniformly focused on the terms of the written agreements transferring those rights, not on the behavior of the parties involved. To the extent Abiomed contends that the behavior of the parties is evidence of an as-yet-unproduced written agreement, it has not alleged in the third-party complaint that such an agreement exists and it has no apparent good-faith basis for doing so,” the judge wrote.