Fresenius Asks CAFC To Reinstate First Jury Verdict

Posted on | April 18, 2008 | No Comments

2008-1306 Fresenius USA  v. Baxter Intl   
ND/CA 03-cv-1431

DJ plaintiff Fresenius appeals various orders from Judge Saundra Armstrong finding certain dialysis machines infringed several Baxter patents.  In addition to some damages, the court entered a permanent injunction against the sale of new machines beginning in 2009.

In 2006 the court found that one of Baxter’s patents was not invalid, and Fresenius then stipulated to infringement.  Subsequently, a jury trial was held on whether a different dialysis machine also infringed and whether the asserted claims were valid.  The jury ruled for Fresenius, finding no infringement and that the claims were invalid.

In February 2007 the court granted Baxter’s JMOL finding the patent’s not invalid and infringed.  The court ordered a new trial solely on the issue of damages, the resulting verdict and orders triggering the appeal.

The court’s JMOL and reversal on invalidity–unluckily entered shortly before KSR–hinges almost exclusively on a lack of substantial evidence on a teaching, suggestion, motivation to combine references.  For example, with respect to the argument that it would have been obvious to combine add a touchscreen to a computer controlled dialysis machine, the court wrote:

Causey testified that it would have been “exceptionally straightforward” to add a touch screen input device to the CMS 08. Tr. at 841:21-25. Phares testified that integrating a touch screen into a computer controlled machine had been done hundreds of time before. Tr. at 468:13-25. This testimony too fails to show substantial evidence of a motivation to combine. “[O]pinion evidence that is connected to existing data only by the ipse dixit of the expert” is of little value. General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). More particularly, the motivation to combine must be supported by actual evidence. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1334 (Fed. Cir. 2002). Nothing beyond conclusory opinions were offered. Therefore, substantial evidence is missing to support the jury findings on claims
5 and 7 of the ‘476 patent.

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