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Open war-of-words at CAFC: Bard Peripheral Vascular v. W.L. Gore & Associates

February 10, 2012

Newman, J. and Gajarsa, J. engage in open warfare in their respective reasons in Bard Peripheral Vascular v. W.L. Gore & Associates.

The judgment is a Court of Appeals for the Federal Circuit decision in a long-running dispute regarding US patent no. 6,436,135 (first filed in 1974!), which relates to prosthetic vascular grafts fabricated from polytetraflouroethylene.  Gajarsa, J. writes for the majority, affirming the lower court’s findings of validity, infringement and enhanced damages. Newman, J. provides a strongly-worded dissent that begins with:

The court today holds that a person who performs the requested test of a material that is provided to him for testing for a specified use, can then, when the test is successful, patent the material he was provided, for the use for which it was tested. My colleagues hold that Dr. David Goldfarb, who was provided with Gore-Tex® tubular material for testing as a vascular graft in dogs, can patent as his own the Gore-Tex material that Gore employees provided to him, and assert the exclusive right to the use for which the material was provided. My colleagues hold that Dr. Goldfarb then can enforce this patent against the provider of the Gore-Tex material that he tested. My colleagues on this panel endorse and defend these errors and improprieties, and now rule that Gore is the willful infringer of this improperly obtained patent on Gore’s product and use. My colleagues find no blemish in this history of incorrect law, impropriety, questionable advocacy, and confessed perjury. I respectfully dissent.

The majority decision is peppered with challenges to the arguments in the dissent, including this opening salvo in the first footnote:

The majority affirms on the record presented after two previous appeals to this court and facts as found by the United States Patent and Trademark Office and a jury. Contrary to the dissent, we are not free to ignore the long history of this case and these prior determinations. 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.

Characterising your colleague’s reasoning as selecting “facts like our favorite jelly beans”, or accusing them of endorsing and defending “errors and improprieties” including “confessed perjury” is pretty serious stuff!