Unfortunately "but we infringed only because their product is inferior" and "if you don't allow us to infringe patients will suffer" don't work....

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In case you are wondering what we are talking about here, we are dealing with Acumed Vs. Stryker. Once you are done here, you can easily tell that a few people who will not be mentioned here (yeah, right) need to go back to law school and pay attention this time around...

Let us see, all this could also be clubbed under "Much Ado about a screw" (and no, don't you start getting any ideas about the slant of this post :p ).

Medical device companies suing the other's head off is not new. As I have blogged here before, Medtronic and Kyphon were at each other's throats till their marriage ended like one of those kisses between the boy and girl who fight till they fall for each other in one of those corny high school musicals. And, you know who actually made money in all that Medtronic Vs. Kyphon madness.

Some industry veterans I have come to know and respect told me ages ago that the "Big Boys" would come down on smaller start ups with teams of lawyers and run them over. Mind you, Acumed is no small company. On their website, they boast of an enviable 90,000 square foot manufacturing facility and the ability to call themselves a global company - rightly so.

However, this particular judgment is not about a match of purse sizes. It is a pithy lesson on what you should know about patent laws, infringement and other intellectual property issues.

"Infringe first, settle later" is a strategy, but a really bad one. If someone in your company is suggesting you go down this path, you know what you might want to ....

I like reading Dennis Crouch's Patently-O. Reading the blog gives you a good picture of various IP issues and is much more cost effective than all those business school case studies you could buy. That said, Acumed Vs. Stryker is a good one for medical device related IP struggles between companies.

As one of the commenters in the Patently-O posting has questioned, "Why not use a different screw?", as a development team or a business you might have to consider various strategies, including:

1. Hiring a good law firm. Listen to them and watch for pitfalls in strategies and implementation. After all, you are paying an arm and a leg sometimes to get the work done.

2. Do appropriate due diligence. Some "clever" lawyers have suggested don't even look at prior art, lest you might have to testify about it in court - well, that's just stupid. When was the last time you had an absolutely spontaneous idea about which you had hitherto never read or heard of...

3. If something looks like it could come back and hurt your company, it probably will. So, pay attention to your IP Strategy? Do you have one? Is it good? Are there people in your company who think "IP Strategy" is just hogwash - maybe something turned them off?

Now, on to what happened in this case. If you read the other blog, it talks about the "4-factor test for injunctive relief" . What is that?

Take a look at this document:
http://www.sonnenschein.com/docs/docs_patent/Four-Factor_Test.pdf

The plaintiff must demonstrate that:

1. It has suffered irreparable damage
2. Remedies available at law are insufficient to repair the damage (a monetary damage of a few million dollars is a good remedy)
3. Considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted, and,
4. Public Interest would not be caused a disservice by a permanent injunction

eBay

The blog also keeps mentioning "eBay". Where does "eBay" head into all this?

Read this:
http://www.patenthawk.com/blog/2006/05/injunction_mud.html

The idea is that in 2006, the Supreme Court declared that whenever the district or federal courts consider a permanent injunction against the defendant, they have to perform the "4-factor test for injunctive relief" on a case by case basis.

eBay and Acumed Vs. Stryker Deadline

If you have been keeping your head above the water on this one so far, you would realize that Acumed sued Stryker in 2004, and the district court came back with a permanent injunction for a decision.

Based on the "eBay" decision handed down by the Supreme Court, the Federal Court dismissed the injunction judgment and sent it back to the district court.

Following a lot of huffing, puffing and blowing, the District Court has once more awarded permanent injunction in this case.

"Licensing Agreements and Permanent Injunctions"

This is probably the most exciting hair-splitter for the legal folks arising out of this case. Read this:

http://www.bingham.com/Docs/District%20Court%20Denies%20Permanent%20Injunction%20in%20MercExchange%20v.%20eBay_(3197).pdf

Let's go back to our friends MercExchange and eBay. Originally, the problem was that MercExchange existed only to patent "stuff" i.e., business methods and license them out to companies actually "practicing the inventions". In short, to use a derogatory sense, MercExchange is a "patent troll".

So, the jury handed down a permanent injunction while the district court turned it down stating that since MercExchange solely existed to license out patents, it could not suffer irreparable damage from infringement.

To muddle this, the Federal Circuit agreed with MercExchange and stated that "infringement does not exist only for those who practice" and reinstated the original infringement decision.

The Supreme Court decided that they do not want to be left out of all this fun, and decided to jump in. And then like the inscrutable parent, it scolded everyone around.

It first said, yes "just licensing without practicing" can be bad, but what would "Universities, individual inventors and others like them do"?

Then it came back and downloaded the now oft-repeated "four factor test for permanent injunction" - with the note that courts could still make "rare" excpetions.

Sadly, it appears that the "Big Boys" of eBay were able to walk back to the district court and prove that MercExchange still did not suffer irreparable damage. It all depends on whether or not you like trolls and whether or not you are or you respect the "individual inventor".

Summary

It's been a long night, so let's recap - Acumed did suffer irreparable damage as has now been proved many times over. A strong IP strategy is necessary, and a stronger defense strategy is also necessary:

1. Claiming that you infringed on someone else's patent after you deduced that their product resulting from the patent is "inferior" to yours, is basically, admission of guilt.

2. Claiming that now that you have infringed anyway and have patients to treat (and retrofit with squeaky hips - no that's not going away, not for Stryker or those who have to live with noisy hippiness), that calls for "damage to public interest" is just ridiculous.

Still want to say "Much Ado about a screw"?

Wierd Copyright issues in medicine surface in gastric bypass innovation lawsuit

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I just wrote about this issue last week. Okay, I wrote about patents but this one is just wierd...

So this case in particular seems to be an interesting one in terms of providing surgeons the ability to still use the copyrighted procedure brochures and other material, as long as they pay and get trained. Dr. Rutledge who invented the procedure does not seem to be so interested in a process patent, thus making it easier for others to use ..and probably cheaper.

And the copyright relates both to the marketing material and related patient recruitment documents...

When you own a copyright and feel its being violated you have to sue to try and protect your copyright. Hence this lawsuit is a technicality.

What I don't understand is, couldn't the doctors at Cornerstone not create their own forms? Sounds awfully lazy of them if you ask me...

Lets see where this one goes...


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New Strategies Galore - Using emotional appeal to kill innovation in medical devices

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Warning: This is an unusually long post..

Here are a couple of paragraphs I have stolen verbatim from the article:

"Dragseth cited the recent case of Dr. Gary Michelson, who in 2005 received a $1.35 billion settlement after suing a medical device company over his patented spinal surgical technique that speeds recovery. Medtronic v. Michelson, No. 01cv2373 (W.D. Tenn.)."

"Last month, a veterinarian who sued a surgical instrument maker over his patented technique for declawing a cat also won his case when the U.S. Court of Appeals for the Federal Circuit upheld his patent. Young v. Lumenis, No. 06-1455 (S.D. Ohio). "

Now let me first acknowledge the article lest, ironically, law.com sues me for freely using parts of their article (which was published after earnest research, and editorial skill for the common good I suppose)

Okay. Let us only look at these two examples. First Medtronic is not the small kid off the block who is being crushed by the Goliath Dr. Gray Michelson. Their positions in fact, would be switched if that were the case...

So what's actually going on? Medtronic, being the big company that it is, picked a problem area, saw a giant market opportunity and developed a product. Dr. Gray Michelson who had done the same thing, except a while ago - and had patented it, decided to sue. Its pure capitalism.

Now, lets imagine if the positions were switched. Let us say, Medtronic contrived of the whole thing, a few scores and some years ago (has to be less than a score for the patent to be valid, so lets say it was no scores and just a few years ago). Then comes Dr. Michelson who wants to perform the same procedure as "Michelson's special procedure". Do you think Medtronic would have said, "Oh, he looks like a poor enough doctor. And he is saving lives. So, let's not go after him..."

If you truly think Medtronic would have said that, I should say you need your head examined (some would say you need a head).

With quite a bit of further ado, let us look at our friendly Vet. Now, are we trying to say that just because a few people are overly taken by the love of their cats (which they buy mostly, thus promoting animal trade) would like to have them treated for cheap, the guy who actually invents the cat-life saving procedure (okay, cat de-clawing doesn't save lives, unless he/she plans to maul your other cats) should not expect to earn a little extra?

See the problem. This world is riddled with idiots. Simply put, their philosophy is "Don't live and most definitely, don't let live".

Innovation equates to and promotes progress. Innovation is needed for us to obtain new treatments. This innovation can grow only if rewarded. Patents are a very good business reward. In both examples above, the companies would have probably had good lawyers scoping the IP field before launching their products.

Don't even think they didn't....

So, in all probability, they decided to deliberately infringe on the patents, though on their life they would never admit it. They probably thought, "Its us, Megabucks Inc. versus single inventor dude. We are sure to win!" Again, not a bad strategy, business - wise. That is what companies do. They try not to own up for their costs as a strategy to reduce costs (thus increasing the miniscule possibilities of their executives paying a much needed visit to prison).

In neither case, would either company have entertained the idea of someone else infringing their patents or even coming close to it...no matter how many lives, cat or human it could have saved. (Kyphon and Medtronic play the merry-go-round of suing each other)

More importantly, if individuals and companies are not allowed to protect and gain monetarily from their hardwork, they would have no motivation beyond their self. And we know how that would go....

Plus, doctors cannot be sued for using procedures, patented or otherwise (unless of course the doctors are not medical, or they are doing it to intentionally cause harm).

Summary: We have now reviewed a very poorly written article, that very poorly through its examples, fails to stand up to a very poor cause.

But who cares? Now "politicians" are looking at "patent reform". And we all know how that story will end...


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