Beth Z. Shaw, Brake Hughes Bellermann LLP
The Federal Circuit reversed a $593 million dollar judgment last week against Cordis Corporation (Saffran v. Johnson & Johnson and Cordis). An Eastern District of Texas judge had upheld a jury’s calculation of damages and had awarded an additional amount in interest, bringing the total to over $593 million. Cordis Corporation is a Johnson and Johnson subsidiary.
The Federal Circuit held that Cordis did not, as a matter of law, infringe a patent covering stents. Stents are tiny mesh tubes used to prop open arteries that have been cleared of blockages.
The Federal Circuit reversed the case based on “claim construction,” or the interpretation of the words in the claims of the patent. Judge Lourie, writing for the three-judge panel of the court, interpreted the terms “device” and “release means” in a way that meant that Cordis did not, as a matter of law, infringe the patent. Of particular note to practitioners, the court found “clear prosecution disclaimer” of certain “devices” based on Saffran’s statements made during prosecution.
The two other judges on the panel concurred, each agreeing that Cordis did not infringe as a matter of law, but for different reasons. Judge Moore agreed with Judge Lourie’s interpretation of “device” but not of “release means.” Judge O’Malley, herself a former district court judge, agreed with Judge Lourie’s interpretation of “release means” but not of “device.”
The fact that the court can reverse such a large award based on the meaning of a single term in the patent illustrates the power of the court’s leeway when interpreting the claims, which they currently do without any deference to the district court’s interpretation. As discussed in a previous post (Entire Federal Circuit to Review Its Deference to Trial Judges’ Patent Claim Determinations), the entire court is scheduled to revisit the question of whether or not to give more deference to a district court’s claim construction. This particular case may have turned out the same way regardless of the level of deference to the trial judge, as it appears that all three judges found at least one reason to reverse the judgment and none of the judges focused on the standard of review for claim construction.