W. L. Gore & Associates hasn't given up yet in its massive vascular graft patent fight against C.R. Bard ($BCR). Despite the loss of a number of appeals in recent years, and even the start of royalty payments, Gore is trying its luck again with a new legal argument.
Delaware-based Gore said its new federal Court of Appeals filing in Arizona argues that the Bard Peripheral Vascular division lacked standing in the original 2003 lawsuit because the initial patent rights in question had a different owner at the time.
Gore explained in its announcement of the appeal that it questions Bard Peripheral Vascular's previous contention in Arizona district court that parent C.R. Bard transferred those rights to Bard Peripheral Vascular in 1996. At that time, BPV was the independently-owned Impra, but Bard snatched it up that year for $143.2 million. Gore points out that in other federal court filings from 1997 to 2000, C.R. Bard said it owned the relevant patent rights, rather than BPV.
Gore said its appeal wants the original Arizona district court judgment in Bard's favor overturned and for Bard Peripheral Vascular to pay money back to Gore that it has obtained from the judgment so far. Bard could not be reached for comment at deadline.
The argument may seem fairly wonk-ish and a bit convoluted, but hundreds of millions of dollars are at stake. And a legal loophole could be a big break for Gore in what is a profoundly impactful patent case.
In November, Gore paid New Jersey-based Bard the first $36 million of the $857.4 million-plus it owes Bard in the wake of another federal appeals court decision upholding an early federal jury ruling in Bard's favor dating back to 2007. The initial payment covered royalty payments for part of 2013, 10 years after an initial Arizona trial judge ruling for Bard. The U.S. Supreme Court has even refused to hear Gore's appeal.
This is a patent dispute for the ages. It dates back to the 1970s, when Gore argued that one of its engineers played a crucial role in helping to invent a polymer material used in Bard's vascular stent graft. Bard has long asserted that it has legal rights to the patent for the material, which Gore still uses for fabrics and surgical devices.
- read the Gore release
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