Federal U.S. Circuit Court of Appeals reverses Johns Hopkins' win on

Daily Record, The (Baltimore), Oct 10, 2008 by Brendan Kearney

A New Jersey company's bloodclot-buster does not infringe three patents the Johns Hopkins University licensed to a medical device manufacturer, a divided appeals court has held.

The decision by the Federal U.S. Circuit Court of Appeals reversed last year's jury award of nearly $700,000 in U.S. District Court in Baltimore.

Hopkins' licensee, Arrow International Inc. of Reading, Pa., produces the Arrow-Trerotola PTD, which uses a basket-shaped device to break up clot-causing material along the walls of vascular grafts in hemodialysis patients.

Datascope Corp. makes a device called ProLumen, which uses an S- shaped wire for the same purpose. Hopkins and Arrow claimed ProLumen's wire changes shape in use, expanding to conform to the inner lumen, or open space of the graft.

In June 2007, the jury found infringement and awarded damages equal to an 18 percent royalty, Arrow announced at the time. The Federal Circuit reversed last week by a 2-1 vote.

While the Arrow-Trerotola PTD touches the walls of vascular grafts at many points, Datascope's ProLumen can only ever make contact at two points, the majority decided last week.

"In a nutshell, that's what the Datascope product was never shown to do, and never could be, because it's simply not the case," said its lawyer, Roy H. Wepner.

Kenneth P. George, a New York attorney who represented Hopkins and Arrow, agreed with the dissent, which would have deferred to the Baltimore jury and Judge William D. Quarles Jr., who denied post- trial motions.

"There's additional evidence that shows there were more than two points of contact, but for whatever reason, the appeals court didn't focus on, didn't find, or didn't see," said George. "The jury didn't miss it, but the appeals court missed it, which is not surprising because the jury had it for a whole week. The jury got to see the witnesses."