Last week, the Federal Circuit heard oral argument in a patent case we have been following because it attracted an amicus brief. In the case, C.R. Bard, Inc. v. AngioDynamics, Inc., C.R. Bard challenges rulings concerning patent eligibility, definiteness, and anticipation, among other issues. Judges Lourie, Reyna, and Chen heard the oral argument. This is our argument recap.
Deanne Maynard argued for C.R. Bard. According to Maynard, the “judgment can be reversed on procedure alone” because the Federal Circuit Court “already held these very patent claims eligible,” while “on indefiniteness, no party raised that issue.” Moreover, Maynard continued, “on anticipation, this court already held that a reasonable jury could reject AngioDynamics’s defense” and, in fact, a “reasonable jury did so.”
A judge suggested the court may “find for you on indefiniteness” but suggested “anticipation is another matter.” The judge highlighted how the lower court concluded the “trial record leaves no room for a reasonable jury to conclude” there exists any novel element sufficient to render the device patentable. Maynard responded by arguing two aspects of the claims “are entitled to patentable weight.” She highlighted, first, the claim requirement that radiographic markers “are radiographically discernible,” and, second, “that they distinguish or identify the device or its functionality.”
Danielle Tully argued for AngioDynamics. She asserted “clear and convincing evidence established that the asserted claims are anticipated.” She argued that neither “relevant evidence based on unclaimed features or conclusory statements” may constitute “substantial evidence that can support the jury’s verdict.” She acknowledged that judgment as a matter of law “should be sparingly granted,” but, she argued, this case “is the exception where it’s warranted.” When a judge asked whether anticipation should go to the jury when “there is conflicting evidence,” Tully agreed in principle, but contended that “here there was no conflicting evidence.”
Later a judge asked Tully what would make a radiographic marker identifiable, because the claim “could mean a few different things.” The judge asked whether the marker was “seeable” or “perceivable.” Tully answered by arguing “the construction here is perceivable.” She said otherwise it would “render the claim limitation indefinite because it would depend on an unknowable standard of comparing” the device it to every prior art device that ever existed.
Another judge asked whether the prior art devices were “considered by the examiner.” Tully responded by indicating that “the patent office didn’t have the independent testing that was submitted to the FDA.” As a result, she said, it lacked the information that the devices “are structurally capable for power injection,” another claim requirement. A judge asked if some of C.R. Bard’s prior art devices “that were tested failed the power injectability limitations.” Tully answered those tests were limited to “just manufacturing tolerances” and indicated “there were definitely” devices that included power injection.
We will continue monitoring this case and report on developments.