A federal jury in Pennsylvania is slated to decide whether Varian Medical Systems’ (NYSE:VAR) infringement of a University of Pittsburgh patent was willful later this month, after a judge there ruled that the RPM respiratory gating system violates one of the school’s patents.
Judge Arthur Schwab of the U.S. District Court for Western Pennsylvania ruled Dec. 30 that the RPM system, which is used during radiation treatments for cancer, infringes Pitt’s patent for “Apparatus responsive to movement of a patient during treatment/diagnosis,” known as the ‘554 patent.
The decision sets the stage for a jury to decide whether Varian’s infringement was willful, which in turn would raise the possibility of a tripled damages award for Pitt. The jury trial is scheduled for Jan. 23, according to court documents. Varian’s RPM system has been on the market since 1999, more than a year after the patent was issued to Pitt, and is a component of Varian’s Trilogy radiotherapy system. It uses an infrared camera to track patients’ motion, rather than the optical camera envisioned in the ‘554 patent.
The patent covers technology designed to switch a radiation beam on and off to synchronize with a patient’s breathing, helping to keep the radiation focused on the treatment area and avoid damaging healthy tissue.
Schwab denied Varian’s bid to have the patent ruled invalid and agreed with the school’s argument that the RPM infringes 7 claims contained in the patent. The judge also denied a Varian move to avoid a jury deliberating over the willfulness issue, writing that “Varian seeks the Court to usurp the function of the jury – which this court will not do.”
“First, Pitt shared its patent applications, and the concepts and technology underlying them, with Varian assuming that Varian was to be a trusted business partner,” Schwab wrote, according to court documents. “Varian took that information, ended its partnership with Pitt, and eventually proceeded to develop the infringing products. … There are facts from which a fact finder could conclude that Varian knew of Pitt‘s application to patent that technology and further knew that patents claiming that technology as Pitt‘s inventions had issued.”