Hologic Inc. (NSDQ:HOLX) won a round in its patent infringement battle with Conceptus Inc. (NSDQ:CPTS) after a federal judge ruled that Hologic can use a letter Conceptus claimed was covered under attorney-client privilege.
Mountain View, Calif.-based Conceptus sued its Bedford, Mass.-based competitor in May 2009, alleging infringement of five patents covering its Essure female sterilization system.
Essure, the company’s sole product, uses a flexible coil partly made of copper to permanently block the fallopian tubes. The device is delivered via a trans-cervical catheter. Late last year Judge William Alsup of the U.S. District Court for Northern California denied a Conceptus motion seeking a preliminary injunction barring Hologic from bringing its Adiana treatment to market. That system, which won 510(k) clearance from the Food & Drug Administration in July 2009, also uses a small insert to occlude the fallopian tubes. But the Adiana procedure first applies radiofrequency energy to small sections of the tube, before a silicone plug is implanted.
Hologic’s latest argument in the case is that Conceptus waived privilege for the letter when it included it in the more than 95,000 pages of documents it released in a prior lawsuit against Ovion Inc. Alsup agreed, ruling that Conceptus did not take reasonable steps to prevent disclosing the letter, according to court documents.
“Plaintiff admitted it did not review the large amount of documents disclosed to defendant because it understood that prior counsel had reviewed the documents before providing them to Ovion. Plaintiff does not, however, describe any reasonable steps taken to prevent disclosure of the letter. Merely asserting that prior counsel inadvertently disclosed the letter does not meet the burden of proof,” Alsup wrote.
