Kirkland, Latham Convince Federal Circuit to Affirm $660 Million Patent Award for C.R. Bard

In an opinion that it calls “the final curtain” on a “long and arduous journey,” the U.S. Court of Appeals for the Federal Circuit has affirmed C.R. Bard’s $660 million patent win against W. L. Gore & Associates over an artificial blood vessel that revolutionized vascular surgery.

In Friday’s 2-1 decision, the appeals court affirmed a $371 million damages award that Bard’s lawyers at Kirkland & Ellis and Latham & Watkins won in 2010. The Federal Circuit also upheld the Phoenix trial judge’s decision to tack on an additional $20 million in attorney’s fees, $120 million in interest, and $28 million per fiscal quarter in royalty payments. Barring further appeals by Gore’s lawyers at Locke Lord and the appellate boutique Farr & Taranto, the decision brings a close to a thirty-year patent fight that a trial judge once called “the most complicated case the court has presided over.”

As The American Lawyer laid out in this 2010 feature by Alison Frankel, Bard and Gore have been battling for ownership of the so-called “vascular graft” since the 1970s, when they filed dueling patent applications. The U.S. Patent and Trademark Office conducted a proceeding called an “interference” to determine which company was the true inventor. After an unprecedented twelve-year wait, the PTO finally ruled for Bard in 1995. Gore’s lawyers appealed to the Federal Circuit, which in 2002 affirmed Bard’s patents. Bard then sued Gore for infringement the following year. The convoluted case wound up before a Phoenix jury, which awarded Bard $185.6 million in damages–a figure later doubled by federal district court judge Mary Murguia.

“Undoubtedly, we are disappointed with the court’s decision,” wrote a Gore spokesperson in a statement. “But the company 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.” She said the company needed time to review the decision before deciding its next step.

If Gore does appeal, it will surely point to Judge Pauline Newman’s spirited dissent. Citing admitted perjury by a former Gore employee, she called the infringement trial “permeated by errors of fact and law, lies, inconsistencies, and injustice.”

Counsel for Bard, Steven Cherny of Kirkland & Ellis, did not immediately return a call seeking comment.

This article originally appeared on The Am Law Litigation Daily.