Everyone Loses! Claim Construction and Sealed Material Gut Infringement, Antitrust Claims

Posted on | March 21, 2008 | No Comments

2008-1242, 1243 Digene Corp. v. Third Wave Tech
WD/WI  07-CV-22

Both parties appeal from different parts of Judge Barbara Crabb’s orders granting summary judgment to defendant Third Wave on plaintiff’s complaint of infringement, and granting summary judgment to Digene on Third Wave’s antitrust counterclaims.

Digene is the exclusive licensee of 5,643,715 entitled "Human Papillomavirus Type 52 DNA Sequences and Methods for Employing the Same," and alleged that Third Wave’s Invader® HPV A9 Oligo Mix infringed.

Following claim construction, Digene proposed to Stipulate to Non-Infringement based on that construction, which the court denied.  Most of the claim construction was based on statements made to the examiner or  otherwise during prosecution, and included alleged disavowal of claim scope.

After additional briefing on the non-patent counterclaims for various Sherman Act and other antitrust allegations, the Court entered the summary judgments.  One of the counterclaims involved alleged violations of the Anti-kickback Act, 42 U.S.C. § 1320a-7b(b).

NOTE: Unfortunately, many of the filing in this case are not available on-line and/or were filed under seal, including the Counterclaim itself (which is not marked "Sealed" but is not available anyway) and almost all the briefing on the counterclaims. 

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