A drawn-out infringement suit over patented prosthetic vascular grafts has finally been settled, as a divided federal appeals court decided Feb. 10 for C. R. Bard over W. L. Gore in a $371 million judgment.
The U.S. Federal Circuit Court of Appeals in Washington, D.C., wrote in its majority decision that substantial evidence exists to support a 2007 Arizona jury verdict that Gore willfully infringed a Bard patent through its sale of the grafts.
The document notes that the suit was filed in 2003 but traces to 1974, when the patent application was first filed and disputed. The contended graft uses a substance that Gore said is used to make its Gore-Tex fabrics. Judge Arthur Gajarsa wrote for the 2-1 majority that Gore “knew or should have known of the objectively high likelihood” that its grafts infringed Bard’s medical patent.
“This should be the final curtain of the saga,” added Gajarsa. “We cannot revisit the facts anew, nor meander through the record and select facts like our favorite jelly beans, nor characterize the facts as the Bard would in a Shakespearean tragedy.”
Reuters Legal reported that the monetary award exceeds Bard’s total reported net income of $328 million for all of 2011, noting that it is unclear whether Gore will appeal the decision to the entire Federal Circuit or to the U.S. Supreme Court.
Bard is based in Murray Hill, N.J. Gore is in Newark, Del.