For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Monday, 13 February 2012

Public interest beats patentee's right to injunction

The IPKat just noticed this note by Dave Healey on the PATENTMATH blog (to whom goes a grateful Katpat) about the decision Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., 2010-1510 (Fed. Cir. February 10, 2012) that came out on 10 February from the Court of Appeal for the Federal Circuit.

Apparently, on the grounds of the public interest in competition in the medical device field, the CAFC refused a permanent injunction against the defendant, a competitor of the patentee/plaintiff.  Having found infringement of the patent, the only relief awarded was an ongoing equitable royalty.  There was apparently no finding of bad faith on the part of the patentee.

This Kat has nothing at present to add to the analysis by Dave Healey.  From his UK perspective, he is quite surprised that the US courts are apparently accepting in principle that a public interest in competition can reduce the remedies available to that of a reasonable royalty.

1 comment:

MaxDrei said...

Yet another 2:1 result at the CAFC. I am increasingly thinking that CAFC judging panels are doing this deliberately, to provoke discussion (and perhaps, as Healy surmises, en banc review).

For more than 30 years now, The EPO has done it more elegantly. Different Boards of Appeal pursue different lines of legal logic till the issue is ripe, and then the Enlarged Board announces, (basta!), the settled line that all the TBA should henceforth follow.

I think (not completely tongue in cheek) that Randall Rader CJ is jealous of DG3's 24 TBA,1000+ cases p.a. and its EBA. Has the AC invited him yet, to join the other national specialist patent law judges listed as members of the EBA?

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