In December, the Federal Circuit issued a per curiam opinion in C.R. Bard, Inc. v. AngioDynamics, Inc., a patent case we have been following because it attracted an amicus brief. In this case, the Federal Circuit addressed a district court’s grant of judgment as a matter of law of anticipation of asserted claims. A panel of the court consisting of Judges Lourie, Reyna, and Chen affirmed the district court’s judgment. This is our opinion summary.
The panel first outlined the relevant factual and procedural background:
This case comes back to us after a retrial . . . in which a jury found that AngioDynamics, Inc. (‘AngioDynamics’) willfully infringed asserted claims of Bard Peripheral Vascular, Inc.’s (‘Bard’s’) U.S. Patents 8,475,417 (‘the ’417 patent’), 8,545,460 (‘the ’460 patent’), and 8,805,478 (‘the ’478 patent’), and that the asserted claims were not invalid. Our prior decision had determined that the district court earlier had erred in determining that the asserted claims of those patents were ineligible for patent as being solely directed to printed matter. . . . It left open the issue of anticipation, determining that there was a factual dispute and vacating the district court’s grant of judgment as a matter of law (‘JMOL’) that the asserted claims were anticipated. . . . But the district court on remand did not address our opinion apart from providing cursory background information, and simply granted AngioDynamics’ post-trial motion for JMOL that the asserted claims were invalid as directed to patent-ineligible subject matter, indefinite, and anticipated.
Bard appeals the district court’s grant of JMOL on ineligibility, indefiniteness, and anticipation. Bard also argues that the jury’s verdict of willfulness should be reinstated, that the district court erred in alternatively granting a new trial, and that the case should be reassigned on remand.
The panel began its analysis by explaining that the district court’s grant of JMOL is reviewed de novo “according to the law of the regional circuit.” It noted that “JMOL is appropriate here if ‘a reasonable jury would not have a legally sufficient evidentiary basis to find for [Bard] on [anticipation].'” The panel also explained that anticipation “‘is a question of fact that is reviewed for substantial evidence when tried to a jury.'” And, it continued, “[s]ubstantial evidence ‘means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'”
The panel noted that, “[a]t trial, AngioDynamics presented evidence that three prior art ports anticipate the asserted claims: Bard’s ‘Adult Titanium Port’ (‘ATP’), AngioDynamics’ ‘Vortex,’ and a third party’s ‘Port-A-Cath.'”
Then, the panel addressed whether “the claimed ‘identifiable feature[s]’ and ‘radiographic marker’ . . . [could] be used to distinguish the prior art.” It noted that the “claimed ‘identifiable feature[s],’ wherein one feature is a ‘radiographic marker,’ were construed as ‘perceivable attributes that identify an access port as being structured for power injection[,]’ which ‘is the exact informational content that we have held is not entitled to patentable weight.” The panel further explained that “the step of ‘identifying [an] indicating radiographic feature on [an] x-ray’ in the asserted method claim merely requires identifying a radiographically discernible feature on an x-ray, . . . and any requirement that the feature convey information about the port is merely a mental step to recognize printed matter, which is . . . not entitled to patentable weight.” The panel also reiterated the court’s prior holding that “the radiographic marker is entitled to patentable weight only to the extent it constitutes a structural feature that is radiographically discernible, not because of any meaning ascribed to it.”
Related to these principles, the panel observed that “AngioDynamics’ expert testi[fied] that each of the prior art ports have a ‘distinctive, characteristic look’ including a ‘distinctive shape’ that is ‘readily identifiable,’ and Bard’s expert’s agree[d] that port shape and basic features would be among usual identifiable attributes via x-ray.” The panel found that this evidence “left no room for a reasonable jury to reject the radiographic identifiability of the prior art ports.” Accordingly, the panel concluded, the district court did not err in concluding that “the claimed ‘identifiable feature[s]’ and ‘radiographic marker’ require nothing more than a radiographically discernible feature, and further that ‘radiographic letters’ are printed matter not entitled to patentable weight, and therefore cannot be used to distinguish the prior art.”
“With the patent-ineligible printed matter not able to distinguish the prior art,” the panel continued in its analysis, “Bard is left with its argument that the jury had substantial evidence to support its finding that the prior art ports were not structured for power injection, and therefore that the district court erred in granting JMOL.” On this point, the panel observed how, “[a]t trial, Bard’s named inventor of the asserted patents admitted that some ATPs would ‘pass’ power injection testing without failure[,] . . . [a]nother named inventor testified that ATP was ‘for sure’ ‘capable of withstanding the pressures of power injection[,]’ [and] AngioDynamics presented testimony from its expert that ATP ‘is structured for power injection.'” Based on this undisputed evidence, the panel concluded “the jury had no reasonable basis to find that the prior art ports were not structured for power injection.”
As a result of its analysis, the panel concluded “the district court properly determined that the asserted claims were anticipated as a matter of law.” Because it affirmed the anticipation determination, the panel declined to “reach Bard’s arguments as to willful infringement, a new trial, and reassignment.”
As a result, the panel affirmed the district court’s judgment.