Becton, Dickinson and Nova Not Entitled to Extra $2 Million: Court

Becton, Dickinson and Co. (BD) and Nova Biomedical Corp. aren't entitled to the extra $1.9 million in additional legal fees they'd attempted to collect for their long-running dispute over blood glucose test strip patents, the US Court of Appeals for the Federal Circuit ruled on March 12.

BD and Nova have already collected $12.3 million they have won thus far in judgments against Abbott, but in a split decision the appeals court upheld the lower court ruling that they "are not entitled to fees on fees, pre-judgment interest, and post-judgment fees..."

This case began in 2004 when BD sued Abbott Diabetes Care, then known as Therasense, in Massachusetts. BD was seeking a declaratory judgment of noninfringement of two patents owned by Therasense for its blood glucose test strip, called the BD Test Strip.

In response, Abbott sued BD for patent infringement in the Northern District of California, alleging that the BD Test Strip not only infringed the first two patents, but also a third. The Massachusetts court transferred its case to the California court.

Then Abbott sued Nova Biomedical Corp. BD's supplier, alleging infringement of the same patents. In 2005 Abbott also sued Bayer Healthcare LLC, alleging that Bayer's Microfill and Autodisc blood glucose strips infringed two of the same patents. The Northern District of California court consolidated all of these cases.

When the consolidated case came up for trial in 2008, the district court granted summary judgment of noninfringement for all the defendants with respect to all of the asserted claims of two of the patents. It further found that not only was nearly all of one of the patents invalid, but that the first four claims of the third patent were invalid as well, and found the rest of that patent to be unenforceable for "inequitable conduct." In 2009, BD and Nova were awarded attorney's fees to the tune of over $5.9 million.

Abbott appealed the district court's judgments of invalidity, unenforceability, and noninfringement, but not the fee award. Although it took a few trips to the courthouse, Abbott eventually lost on all counts. In May 2012, the district court reinstated its original fee award and added post-judgment interest totaling $6.4 million, but denied parts of the motion seeking additional reimbursements and interest.

In December 2012, Abbott paid BD and Nova the $12.3 million total then due. But BD and Nova appealed the denial of the additional reimbursements and interest. With this March 12 decision, the appeals court has let the lower court's ruling stand.

So, it would appear, this case can finally be marked 'closed'.

Stephen Levy is a contributor to Qmed and MPMN.