"You Assert That a ‘Spike’ is a Non-Pointed Structure Under This Patent? That Will Cost You $4.6 Million, Counselor!"

by Lee Gesmer on March 18, 2009

"You Assert That a 'Spike' is a Non-Pointed Structure Under This Patent?  That Will Cost You $4.6 Million, Counselor!"

As I’ve said so many times in this blog, it’s not the law you need to fear, it’s the judge.

In CU Medical v. Alaris Medical System (a patent infringement case involving medical valves) the patent owner/plaintiff argued that the term “spike,” described in the patent as “a pointed instrument,” included non-pointed structures, such as a tube.The California U.S. District Court trial judge didn’t take kindly to this frivolous argument (in the eyes of the judge).  The judge also found that the plaintiff had made “multiple, repeated misrepresentations . . . to the Court,” another no-no.

The trial court imposed sanctions totalling $4.4 million under 35 U.S.C. Section 285 (“The court in exceptional cases may award reasonable attorney fees to the prevailing party”) as well as Rule 11 sanctions for good measure.

The CAFC affirmed. Here’s is a link to the case: CU Medical v. Alaris Medical System.

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