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February 10, 2012

Federal Circuit upholds $371 million patent award

A #patent dispute turned #lawsuit may finally be finished, 38 years after the patent application in question was first filed.

And it's big, very very big.

In a divided opinion Friday, the U.S. Court of Appeals for the Federal Circuit upheld a $371 million award against W. L. Gore & Associates. The court agreed that Gore, known for its' Gore-Tex material, had willfully infringed on a patent held by Bard Peripheral Vascular/C.R.Bard Inc. Moreover, an additional $19 million was awarded to Bard's attorneys, who at the federal circuit were led by Steven C. Cherny of Kirkland & Ellis.

With interest, royalties and fees, the amount owed Bard is upwards of $783 million, Bloomberg reported.

Everything about this case seems larger than life, from the money involved to the time it's taken. The patent application was filed October 24, 1974 and issued nearly twenty-eight years later on August 20, 2002. Not long after, litigation began. (Insert, here, obligatory literary reference to Jarndyce and Jarndyce,the endless legal dispute cited in Charles Dickens' novel Bleak House.)

The facts seem just as technical as you'd expect, involving "prosthetic vascular grafts" and the like, but Circuit Judge Arthur J. Gajarsa shows some verve in his writing, as in a footnote that states:

"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."

This last, BTW, is a sideways reference to the dissent by Circuit Judge Pauline Newman, which cites to the following from Measure for Measure:

We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror.



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"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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