Hologic Inc. (NSDQ:HOLX) fought back against rival Conceptus Inc. (NSDQ:CPTS) in a lawsuit accusing Conceptus of falsely marking one of its products with patents owned by Hologic.
The lawsuit, filed in the U.S. District Court for Massachusetts, accuses Conceptus of marking its Essure female sterilization system as protected by two patents covering Hologic’s competing Adiana system.
It’s not the first legal tussle between the cross-country nemeses. Mountain View, Calif.-based Conceptus sued Hologic in May 2009, accusing the Bedford, Mass.-based firm of infringing a quintet of Conceptus patents. A federal judge for the U.S. District Court for Northern California handed Conceptus a blow in that case late last year, denying a motion for a preliminary injunction that would have kept the Adiana system off the market.
Hologic’s counter-suit alleges that the Essure system is not covered by at least one claim in the two patents it owns.
"Among other things, use of the Essure system does not involve the application of energy, or the transmission of electrical current from an electrical conductor, as part of a sterilization method," according to court documents. "Conceptus has purposely and knowingly falsely marked the Essure materials with the [patents in question] for the purpose of deceiving the public. … Conceptus’ deceptive intent can be inferred from its pattern of falsely stating, when perceived to be advantageous, that its Essure system involves the use of energy."
Citing the Northern California district lawsuit, Hologic accuses Conceptus of claiming use of the Essure device involves energy.
"At other times, Conceptus has asserted that Essure system does not involve the use of energy, again depending upon whether it was perceived to be advantageous at the time. For example, in trying to distinguish its system from Hologic’s Adiana product, Conceptus has asserted that the Essure system has ‘no risks’ for patients because, unlike Adiana, the Essure system does not involve the use of radiofrequency energy."
The lawsuit claims that Conceptus has sold at least 300,000 Essure systems in the U.S. At $1,300 to $1,500 a pop, that means a gross of about $390 million to $450 million. Hologic wants the court to award $500 for each falsely marked product, or $150 million, "with one-half of the recovery being paid to the United States," according to court documents.
The lawsuit seeks a jury trial, a permanent injunction barring further false marking and legal fees, in addition to the $150 million in damages.