A federal appeals court last week denied a bid by Becton Dickinson & Co. (NYSE:BDX) to have it review a damages decision in Retractable Technologies‘ (NYSE:RVP) $7.7 million patent infringement win over BD.
Earlier this summer the U.S. Court of Appeals for the Federal Circuit denied BD’s motion to have the damages award reconsidered. A lower court had found that BD infringed patents with both its 1ml and 3ml syringes; the appeals court later ruled that only the smaller size was in violation but left the $7.7 million damages award intact.
Becton appealed, arguing that the decision to reverse the 3ml infringement ruling should have triggered a review of the damages award. The Federal Circuit disagreed, ruling that BD should have raised the issue in its earlier appeal. In August BD asked for a re-hearing of the case, arguing that the ruling not to reconsider damages conflicts with precedent, according to court documents. Retractable countered that BD’s interpretation of precedent is "flatly incorrect," according to the documents.
But the Federal Circuit declined Sept. 19 to hear BD’s latest appeal, a petition for rehearing and rehearing en banc, with no commentary.
Retractable sued BD in 2007, alleging that Becton’s Integra syringes infringe patents covering its competing VanishPoint devices. After the initial appeals decision on the 3ml device, the Federal Circuit denied Retractable’s bid for a re-hearing; Retractable appealed to the U.S. Supreme Court, but the high court refused to hear Retractable’s appeal.
In a separate case in 2013, Retractable won a $114 million decision when a federal judge in Texas ruled that BD violated the Lanham Act’s false advertising proscription. The verdict in the antitrust case prompted Franklin Lakes, N.J.-based BD to set aside about $340 million in pre-tax charges during it fiscal 2013 4th quarter, or about $1.06 per share. Absent that adjustment, the company affirmed its guidance for the full year of 5% growth for the full year and EPS between $5.65 and $5.68. That works out to adjusted EPS of $4.59-$4.62. BD lost its bid to toss that case after a judge ruled that infringement can constitute anti-competitive behavior.