After decades of legal battles, C.R. Bard Inc. is finally poised to collect a huge chunk of change from rival W.L. Gore & Associates Inc. in their patent fight over artificial blood vessels.
The U.S. Supreme Court refused on Monday to hear Gore’s appeal of a ruling that affirmed a $186 million jury verdict it lost to Bard in 2007. Bard disclosed in a regulatory filing in September that the verdict had swollen in value to between $800 million and $900 million. Thanks to the Supreme Court denying cert, Bard is on track to take home most of that award. The exception is a portion that’s still being fought over in federal court in Phoenix, Arizona.
As The American Lawyer explained in a a November 2009 cover story, the patent fight between Bard and Gore dates back to 1974, when the companies filed dueling patent applications on vascular grafts. A staggering 28 years later, the U.S. Patent and Trademark Office finally awarded the vascular graft patent to Bard. Gore continued to sell its grafts, prompting Bard to bring suit in 2003 in Phoenix.
In 2007, a jury determined that Gore willfully infringed the patent and awarded $186 million in damages. Finding that Gore acted willfully, U.S. District Judge Mary Murguia in Phoenix doubled the size of the verdict in 2009. She also awarded $20 million in attorneys fees, bringing the size of the verdict to roughly $410 million, and tacked on another $120 million in interest and ongoing royalties. Those royalty payments have kept accruing while Gore’s lawyers at Fish & Richardson and Locke Lord pursued an appeal to the U.S. Court of Appeals for the Federal Circuit.
Siding with Bard’s lawyers at Kirkland & Ellis and Latham & Watkins, a three-judge Federal Circuit panel affirmed the verdict in February 2012, calling its decision “the final curtain” on a long and arduous” journey. But in June 2012 the Federal Circuit revisited its earlier ruling and concluded that Judge Murguia used the wrong standard for determining willfulness.
Murguia, who has held onto the case despite ascending to a seat on the Ninth Circuit, has yet to rule on remand, so some doubt hangs over the $186 million award for willful infringement. But the Supreme Court’s decision not to hear another appeal means the curtain may soon be closed for real.
