IP Watch: AdvaMed Denounces Patent Reform Legislation

Savvy buyers should examine the robustness of a potential acquisition’s corporate compliance program.

Lynn Shapiro Snyder

March 1, 2009

4 Min Read
IP Watch: AdvaMed Denounces Patent Reform Legislation

Stephen J. Ubl, president and CEO of the Advanced Medical Technology Association (AdvaMed), has expressed concern over the Patent Reform Act of 2009.

“We believe the legislation is not in the best interests of American patients; it will weaken existing patent protections, and it will have an adverse effect on medical technology innovation,” he said. “We are very concerned about the legislation's apportionment of damages provision. Patent reform legislation should not provide significant advantages to one business model at the expense of others, and this provision could limit the economic damages for which an infringer can be held accountable.”
In addition, he said that a reduction in damages to the injured company serves to cheapen medical technology intellectual property and, in fact, could have the perverse consequence of encouraging infringement.
Ubl's remarks were in response to a hearing held by the Senate Judiciary Committee, chaired by Patrick Leahy (D-VT). The final direction of patent reform, he said, could have serious implications on the U.S. medical technology industry's ability to continue to innovate and provide solutions not only to the challenges facing U.S patients, but for the healthcare system as a whole.
Other IP News in Brief:
Smith & Nephew Inc.'s Advanced Wound Management division announced that the German Federal Patent Court in Munich has held the Wake Forest patent for negative pressure (NPWT) licensed to Kinetic Concepts Inc. invalid in Germany. “Having cleared this legal hurdle in Germany ensures our ability to provide patients with the optimal care and clinicians with choice when utilizing NPWT,” said Robin Carlstein, senior vice president of Advanced Wound Devices at Smith & Nephew. “Smith & Nephew takes intellectual property rights seriously and considers such issues carefully before any new product launches. We are extremely pleased with the German Federal Court's decision.” Smith & Nephew and KCI have been engaged in litigation in the United States in connection with KCI's NPWT patents. As part of the U.S. legal process, three of KCI's U.S. patents relating to NPWT stand rejected as unpatentable by the U.S. Patent Office.
• The District Court of Düsseldorf, Germany, has determined that Edwards Lifesciences Corp. does not infringe on Cook Inc.'s German transcatheter valve patent. Cook said in that it will promptly appeal promptly the initial ruling denying the company's claim that Edwards Lifesciences is infringing Cook's German patent for transcatheter valve technology. Cook filed the action in February 2008, claiming that the Sapien THV valve made by Edwards infringes Cook's German patent. Despite the decision, Cook remains convinced that the Edwards product infringes Cook's. “We are confident that the District Court's first instance decision will be corrected on appeal,” said Cynthia Kretz, general counsel for Cook. “We believe that the first instance decision relies upon an improper interpretation of our patented technology and remain confident that a proper interpretation encompasses the Edwards product. Protecting Cook's extensive intellectual property concerning transcatheter valve technology is a priority to the company's mission, and we will vigorously pursue all options.” Edwards said that is is pleased with this first infringement decision. “Edwards has invested substantially to assemble what we believe is the strongest and most comprehensive intellectual property portfolio in transcatheter heart valves, and we are committed to protecting our interests, said Larry L. Wood, Edwards' corporate vice president, transcatheter valve replacement.” A countersuit by Edwards claiming invalidity of Cook's German patent is expected to be heard in Munich in 2010. Edwards has a separate lawsuit against Cook in the United Kingdom that challenges the validity of Cook's UK transcatheter valve patent. Cook has counter-sued there, claiming infringement. That case is scheduled to be heard in May 2009.
OrbusNeich Medical Inc. has filed a patent-infringement lawsuit against Boston Scientific Corp., saying the medical-device company is illegally using patented aspects in its Taxus Liberte coronary-stent product line, according to a report on CNNMoney.com. Taxus Liberte, launched outside the United States in 2005, won FDA approval in October 2008. OrbusNeich said that in 2000 it entered into an agreement with Boston Scientific under which the Hong Kong–based firm provided Boston Scientific with proprietary stent samples and design details, which OrbusNeich filed patents for in 2000 and 2001. The patents were later awarded to OrbusNeich, but the company alleges Boston Scientific filed a patent application with new stent design drawings that were not included in any of its provisional applications over which the new application claimed priority.

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