DC ineligibility decision erroneous as claims not “solely directed to the printed matter”

C. R. Bard, et al. v. AngioDynamics, Inc.

Docket No. 2019-1756, -1934 (http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1756.OPINION.11-10-2020_1683097.pdf)

REYNA, SCHALL, STOLL

November 10, 2020

Brief Summary:  DC erroneously granted JMOL based on expert mistake and conclusion that printed matter made claims patent ineligible under section 101.

Summary:  Bard appealed DC grant of judgment as a matter of law (JMOL) that the claims of three patents related to assemblies “for identifying a power injectable vascular access port” using “identifiable features” including a “radiographic marker perceivable via x-ray” were not infringed and invalid under section 101 for being directed to printed matter.  Dependent claims require the “radiographic marker” to “be in the form of radiographic letters or other symbols, patterns, or characters” and an “extrinsic identifier” in the form of “a key chain, a bracelet, a wrist band, a sticker provided on a patient’s chart, a patient ID card, or a label provided on the product packaging.”  AngioDynamics was granted JMOL of non-infringement, no willfulness and ineligibility under section 101 based on the “printed matter doctrine” after presenting its case which included (for both sides) expert testimony on infringement and damages.  The FC panel agreed with Bard that the DC erred in granting JMOL because a mistake made by Bard’s expert “undermine[d] his credibility, it does not make his testimony legally insufficient to support an infringement verdict” (distinguishing Wiener (FC 1996) and Cordis (FC 2011)), “Bard was entitled to rely on AngioDynamic’s representations to its customers and to the FDA” (“[n]either the [DC] not AngioDynamics provide any reason why direct testing evidence is required…under these circumstances”), and “there was sufficient circumstantial evidence” that “AngioDynamics induced infringement of the method claims” (Toshiba, FC 2012 (sufficient evidence to “reasonably conclude that, sometime during the relevant period[,] more likely than not one [entity] somewhere in the [US]’ performed each of the claim steps, even when there is no direct evidence of a specific person doing so”)).  The FC panel also found the DC’s finding of no willful infringement because “Bard had failed to show infringement” or AD “had obtained written opinions of counsel regarding the invalidity, and Bard had failed to show that the opinions were ‘drafted by a bad law firm’ or put forth other evidence of willfulness” to be erroneous (e.g., Bard introduced evidence that AD was “aware of the applications that issue as the patents-in-suit prior to their issuance”, “intentionally copied Bard’s CT radiographic marker” (Eko Brands (FC 2020); Polara (FC 2018), leaving “question[s] of fact for the jury”).  The FC panel also found the DC’s patent ineligibility finding “procedurally improper” since the issue was not “fully heard” but also “conclude[d] that although the asserted claims contain printed matter that is not functionally related to the remaining elements of the claim, each claim as a whole is patent eligible because none are solely directed to the printed matter” (“no patentable weight” assigned “to the claimed printed matter”; AstraZeneca, FC 2010; In re Chatfield, CCPA 1976; Praxair, FC 2018; In re Marco, FC 2018 (“markings did not cause dice to become a ‘manufacture with new functionality”)) and “material disputes of fact remain as to whether other elements of the claim are novel of the prior art.”