04|01|2008
CBLH's IP Litigation Section Scores a Dozen Straight Wins at the Federal Circuit
Connolly Bove’s Intellectual Property Litigation Section continues to land in the winner’s circle. At the close of 2007, Connolly Bove had prevailed in 12 of its last 12 patent appeals before the United States Court of Appeals for the Federal Circuit. This remarkable run of victories confirms Connolly Bove’s position as a leader in IP litigation. Jeffrey B. Bove, the Chair of the firm’s IP Litigation group, explains that “A 100% success rate is a very rare occurrence over this many appeals. We are pleased to have successfully served our clients in this consistent manner.” Connolly Bove Lodge & Hutz LLP offers a full range of intellectual property services including first chair patent, trademark and copyright litigation representation at both trial and appeal, counseling, interferences, prosecution, transactions and trademark services. The firm has been recognized as one of the top ten most active patent litigation firms in the nation by IP Law & Business magazine.
1. Omegaflex, Inc. v. Parker-Hannifin Corp. – The Federal Circuit reversed the grant of summary judgment and vacated the issuance of an injunction issued by the District Court for the District of Massachusetts. The Massachusetts Court had enjoined Parker Hannifin Corporation from selling its FastMate™ fitting used to obtain leak-free metal-to-metal seals in natural gas applications. Parker Hannifin, with annual sales exceeding $8 billion, is the world’s leading diversified manufacturer of motion and control technologies.
2. Henkel Corp. v. The Procter & Gamble Co. – In a rare reversal of the Interference Board, the Federal Circuit vacated a decision in favor of Procter & Gamble concluding that the Board’s factual findings supported an actual reduction to practice by Henkel Corporation. The Federal Circuit remanded the matter for further proceedings consistent with the Court’s opinion.
3. Pfizer Inc v. Ranbaxy Labs. Ltd. – The Federal Circuit ruled that Lipitor® will remain covered by Pfizer’s basic patent in the U.S. until 2010. In one of the most economically significant patent cases of the last century, Connolly Bove served as lead counsel at both trial and on appeal and successfully sustained Pfizer’s basic patent and its term extension to preserve Pfizer’s exclusivity over Lipitor®. This win secures Lipitor®’s status as the world’s best selling drug.
4. Bayer AG v. Housey Pharmaceuticals, Inc. – Connolly Bove successfully obtained a ruling that four patents issued to Housey Pharmaceuticals, on which Housey had sued over 25 pharmaceutical companies, were procured by inequitable conduct. The decision sustained an award of attorney’s fees and costs in excess of $1.9 million. At trial, Connolly Bove proved that Housey had obtained the patents through the submission of fabricated data.
5. Falko-Gunter Falkner v. Inglis – Connolly Bove prevailed in another Federal Circuit appeal that involved a patent interference that explored the evolving written description requirement in the context of biotechnology. The interference count concerned a viral vaccine based on a poxvirus vector. In a unanimous decision authored by Judge Gajarsa, the Court upheld the USPTO’s decision awarding priority to party Inglis. The central issue in the case concerned whether Inglis’ specification (and priority specifications, which were very similar) contained sufficient enablement and written description support for the interference count and for Inglis’ claims. While the Inglis specification disclosed that the vaccine virus could be based on a poxvirus, the only “working” example contained in the specification related to a herpesvirus embodiment of the vaccine.
6. Honeywell International, Inc. v. ITT Industries, Inc. – Connolly Bove successfully represented defendants TG North America Corp., TG Fluid Systems USA Corp., and A. Raymond, Inc. in an action by Honeywell alleging infringement of a patent relating to electrically conductive fuel filters for fuel injection systems. We obtained a favorable Markman ruling followed by grant of summary judgment of non-infringement and obtained Federal Circuit affirmance of the summary judgment of non-infringement, followed by a favorable settlement of the defendants’ counterclaims against Honeywell for an award of attorneys’ fees.
7. Bayer AG v. Housey Pharms., Inc. – In one of the most widely watched earlier appeals in the Housey case, Connolly Bove successfully argued for Bayer relating to an important issue of first impression regarding the scope of process patents. In keeping with a tradition of establishing new law in the field of intellectual property, the Federal Circuit ruling interpreted what types of products are protected under 35 U.S.C. § 271(g), which prohibits the importation into the United States of products made by processes covered by United States patents. The Federal Circuit agreed with our argument that the language of § 271(g) should be limited to tangible manufactured goods and affirmed the district court decision dismissing Housey’s claims that Connolly Bove’s client Bayer infringed Housey’s patent.
8. Rhone-Poulenc Agro, S.A. v. DeKalb Genetics Corp. – In a rare en banc decision, the Federal Circuit ruled that opposing party Monsanto was not a “bona fide” purchaser of the technology used in its Roundup Ready® corn. Connolly Bove argued that because Monsanto was a nonexclusive licensee, it could not freely use the technology. The court agreed and held Monsanto liable for damages to our client.
9. Evident Corp. v. Colgate-Palmolive Co., Inc. – We successfully defended our client in a patent infringement suit relating to baking soda and peroxide toothpaste. After a bench trial, one of patents asserted against our client was held unenforceable due to inequitable conduct and the Federal Circuit affirmed. The plaintiffs withdrew a second patent asserted against Colgate and the parties reached a confidential settlement on the amount of attorney fees that were reimbursed to our client.
10. In re Manchak Patent Litigation – We successfully turned back an infringement claim against our client, Atlantic Richfield Company (now BP), based on a patent involving the processing of organic sludge. The District of Delaware granted Atlantic Richfield’s summary judgment motion of noninfringement in this MDL litigation. The firm obtained a per curiam affirmance of that decision.
11. Allen v. Howmedica Leibinger, Inc. (Pfizer Inc.) – Dr. George S. Allen claimed that our client violated the Federal Lanham Act and Ohio unfair competition laws by making false references to a patent in a brochure describing a medical device used in connection with image-guided surgery. The court granted summary judgment to Pfizer Inc, holding that there was no evidence of bad faith in referencing the presumptively valid patent. Eight days after Connolly Bove’s oral argument, the Federal Circuit affirmed per curiam.
12. Adang v. Umbeck (Bayer CropScience) – Connolly Bove, as co-counsel for Bayer CropScience, prevailed in another Federal Circuit appeal in a patent interference. The decision involved application of the written description requirement of 35 U.S.C. 112 in the context of a claimed invention comprising transgenic cotton. The Court affirmed the Board's determination that Adang's narrowly-drawn specification, which related to transformation of plants with insect resistance genes, did not support the addition of later claims, to provoke interference, which more broadly recited transformation of cotton plants with "selected foreign DNA" not restricted to insect resistance genes. The Court observed that it was appropriate for the Board to decide the written description issue solely based on the content of Adang's specification, and in the absence of expert testimony. The Court also affirmed the Board's finding that Adang's reference to another application relating to transgenic cotton in the Adang specification was not a valid incorporation by reference of the content of the other application.
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