Federal Circuit Affirms Huge Award for Bard in Decades-Long Suit

By Dyanna Quizon, Esq. on February 15, 2012 | Last updated on March 21, 2019

The Federal Circuit Court of Appeals may have drawn "the final curtain" over the decades-long patent war between W.L. Gore & Associates and C.R. Bard Inc. and upheld one of the largest patent awards it has ever affirmed.

In a 2-1 decision on Friday, the Federal Circuit affirmed a $186 million jury verdict and post-trial rulings that doubled the verdict against Gore, the maker of Gore-Tex, which was accused of willfully infringing a Bard patent on vascular stents. The $371.2 million award reportedly exceeds Bard's total reported net income of $328 million in 2011.

In addition to the jury verdict, the Federal Circuit affirmed $19 million in attorneys' fees, and a 12.5-to-20 percent royalty fee. Gore could end up owing more than $800 million after all the payments are made.

The huge win for Bard comes after a 38-year-long dispute that has gone before the Federal Circuit three times.

In its latest ruling, the Federal Circuit held that a lower court judge was correct to rule that Gore plant manager Peter Cooper, who allegedly worked with researcher David Goldfarb to test the potential use of Gore-Tex as a possible prosthetic blood vessel, was not a co-inventor of the medical patent in question.

"Goldfarb and Cooper were not joint inventors because Cooper did not communicate to Goldfarb that the internodal distance was the key to creating successful grafts, and, therefore, the jury could have reasonably concluded that Cooper's collaboration with Goldfarb did not contribute to the conception of the invention in a significant manner," the majority wrote.

In addition, the Federal Circuit held that the lower court judge acted within her discretion to double the damages award given the jury's finding of willfulness and Gore's continued infringement of the patent despite repeatedly losing in court.

Even if Gore does pursue its options of appealing the decision to the entire Federal Circuit or the U.S. Supreme Court, this may be the swan song for the company. The majority's apparent disdain for visiting the case once again was evident in its opinion: "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," the Federal Circuit panel wrote.

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