Retractable Technologies (NYSE:RVP) this week asked a federal appeals court not to revisit its damages decision in Retractable’s $7.7 million patent infringement win over Becton Dickinson & Co. (NYSE:BDX), calling BD’s argument for a re-hearing "incomprehensible."
The U.S. Court of Appeals for the Federal Circuit last month denied BD’s motion to have the damages award reconsidered. A lower court jury 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. Earlier this month, BD asked for a re-hearing of the case, arguing that the ruling not to reconsider damages conflicts with precedent, according to court documents.
"The panel decision in this appeal conflicts with these precedents by holding that a prior appeal’s partial reversal of a judgment based on a general damages verdict did not require a recalculation of damages after the matter returned to the district court," BD argued.
Retractable countered that BD’s interpretation of precedent is "flatly incorrect," according to the documents.
"BD’s standard is incomprehensible and it is impossible to apply. No appeal would be done when it appeared to be done. It would just be an entrée into a mandate battle to be waged in the district court and then appealed anew. There is no reason why the court’s mandate cannot generally be what it simply appears to be: the ordering language at the end of the opinion. And if a party thinks the court missed something in stating its mandate, that party can move for rehearing," Retractable argued.
That company 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.