Docket No. 201-1285
NEWMAN, PROST, O’MALLEY
Jan. 2, 2012
Brief Summary: FC affirmed DC decision that this case was exceptional under 35 U.S.C. 285 and that MarcTec engaged in litigation misconduct at least in part because it relied on “junk science”.
Summary: In a 2009 decision, the FC affirmed the SD IL DC decision regarding claim construction and of no infringement by J&J/Cordis (regarding the “Cypher” stent). In Feb. 2010, the DC granted Cordis’ motion to declare the case exception under 35 USC 285 and awarded attorney fees and expenses of more than $4.6 million. Cordis appealed that decision. The patents in suit, the ‘753 and ‘290 patents, related to “heat bonded” (e.g., “non-flowable and non-adherent at room temperature, and becomes flowable, tacky, and adherent upon the application of heat”) surgical devices using a polymer and an antibiotic. Cordis’ granted request to the DC argued that MarcTec engaged in litigation misconduct by misrepresenting claim construction law to avoid intrinsic evidence, mischaracterizing the district court’s claim construction, and offering “junk science” that was unreliable, untestable, and had no relevance to this case (e.g., “Dr. Sojka’s theory that spraying droplets at an unrealistic speed, approaching the speed of sound (and unrelated to anything that happens in the Cypher coating process) would increase the temperature of the droplets – in ways that cannot be measured – for 5 millionths of a second (0.000005 seconds) is an untested and untestable theory that is neither reliable nor relevant to the issues at hand.”) The FC affirmed the DC decision because MarcTec “acted in bad faith by filing a baseless infringement action” and “engaged in vexatious and unjustified litigation conduct that unnecessarily prolonged the proceedings” (e.g., “no reasonable application of the principles this court enunciated in Phillips…supports its position”, “MarcTec’s proposed claim construction…ignored the entirety of the specification and the prosecution history, and thus was unsupported by the intrinsic record”, and “the specification and prosecution history clearly refute MarcTec’s proposed claim construction”).