Court upholds $371M patent decision against W.L. Gore, favoring Bard

A federal appeals court has sided with devicemaker C.R. Bard ($BCR) in a patent-infringement dispute with W.L. Gore dating back 38 years. The 2-1 ruling upholds a $371 million judgment against the Delaware maker of surgical products, fabrics and fibers.

The U.S. Court of Appeals for the Federal Circuit in Washington issued its decision Feb. 10, and Bloomberg reports on the story in detail.

While some patent dust-ups can last a long time, this one has had some staying power, proving to be "a long and arduous journey for the parties," as Judge Arthur Gajarsa noted in the court's opinion. The fight first erupted in 1974, when Bard originally requested the patent, which took 28 years to come through because of head-butting over who first invented the substance in question. At issue: Bard's vascular graft that uses a material known as ePTFE to help keep the form of non-coronary blood vessels; Gore has said it uses the compound to make its Gore-Tex fabrics. (The patent states, interestingly, that the substance resembles DuPont's Teflon, the article notes.)

Bard filed its initial complaint in 2003 and a federal jury ruled in its favor in 2007, awarding the company $185.6 million. Because the jury found Gore willfully infringed the patent, a judge subsequently doubled the amount and ordered Gore to begin paying between 12.5% and 20% royalties. But Gore has been allowed to keep selling its product, something the appeals court affirmed to preserve competition, the Bloomberg article said. A previous federal ruling determined that Gore wasn't the first inventor.

And so, if you factor in interest, unpaid royalties and related fees, Gore's bill may surpass $783 million, the story explains.

Not surprisingly, Bard spokesman Scott Lowry told Bloomberg that the company was "pleased with the ruling." Equally not surprising: Gore is disappointed with the court's decision. However, privately held Gore is "as strong as it's ever been, and this does not change our plans to continue to bring to market innovative and reliable products that improve health and save lives," company spokesman Michael Ratchford said in an emailed statement to Bloomberg. Patent lawsuits are likely to accelerate, meanwhile, as device companies increasingly seek to protect anything that gives them an edge in an increasingly competitive marketplace.

- check out the court's decision
- here's the Bloomberg article