W.L. Gore & Assocs., Inc. v. C.R. Bard, Inc.

• Decision Date: 24 November 2015
• Docket Number: C.A. No. 11-515-LPS
• Citation: 146 F.Supp.3d 595
• Court: U.S. District Court — District of Delaware
• Parties: W.L. Gore & Associates, Inc., Plaintiff, v. C.R. Bard, Inc., and Bard Peripheral Vascular, Inc., Defendants.

146 F.Supp.3d 595

W.L. Gore & Associates, Inc., Plaintiff,

v.C.R. Bard, Inc., and Bard Peripheral Vascular, Inc., Defendants.

C.A. No. 11-515-LPS

United States District Court, D. Delaware.

Signed November 24, 2015

Pilar Gabrielle Kraman, Adam Wyatt Poff, Young, Conaway, Stargatt & Taylor LLP, Wilmington, DE, Christopher J. Burrell, Elizabeth Cowan Wright, Erickson A. Linzey, James W. Poradek, Katherine S. Razavi, Kevin P. Wagner, Lauren J. Frank, Lucas J. Tomsich, Theodore M. Budd, Timothy M. Sullivan, Pro Hac Vice, for Plaintiff.

Jack B. Blumenfeld, Michael J. Flynn, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, DE, John L. Strand, Julie B. Peng, Katharine M. Burke, Michael A. Pearson, Jr., Pro Hac Vice, for Defendants.

MEMORANDUM ORDER

HON. LEONARD P. STARK, UNITED STATES DISTRICT JUDGE

WHEREAS, Magistrate Judge Burke issued a 16-page Memorandum Order (“Stamm Daubert Order”) (D.I. 411), dated October 23, 2015, granting Defendants C.R. Bard, Inc., and Bard Peripheral Vascular, Inc.'s (“Defendants” or “Bard”) Daubert motion to exclude certain opinions and testimony of Plaintiff's damages expert, Laura B. Stamm (“Stamm Daubert Motion”) (D.I. 256);

WHEREAS, on November 6, 2015, Defendants objected to the Stamm Daubert Order (“Stamm Daubert Objections”) (D.I. 422), and specifically objected to “allowing [Plaintiff W.L. Gore & Associates, Inc. (“Plaintiff” or “Gore”) ] the opportunity to inject new expert evidence into the case, only a few weeks before trial, to support an opinion that could not possibly have been based on such evidence” (id. at 1);

WHEREAS, on November 20, 2015, Plaintiff responded to the Stamm Daubert Objections (D.I. 456), arguing that “Judge Burke fairly and reasonably resolved Bard's complaint regarding Laura Stamm's royalty testimony, did nothing that was clearly erroneous, and did not prejudice Bard in any way” (id. at 1);

WHEREAS, the Court has considered the Stamm Daubert Motion and Order¹ using a “clearly erroneous and contrary to law” standard of review, see Masimo Corp. v. Philips Elec. N. Am. Corp., 62 F.Supp.3d 368, 388 (D.Del.2014) ; 28 U.S.C. § 636(b)(1)(A) ; Fed. R. Civ. P. 72(a),² and has further reviewed all of the pertinent filings ;

WHEREAS, Judge Burke issued a 33-page Report and Recommendation (“Anticipation Report”) (D.I. 428), dated November 9, 2015, recommending that Defendants' Motion for Summary Judgment of No Anticipation (“Anticipation Motion”) (D.I. 226) be granted in part and denied in part;

WHEREAS, on November 16, 2015, Defendants objected to the Anticipation Report (“Defendants' Anticipation Objections”) (D.I. 434), and specifically objected to (1) the Anticipation Report's conclusion that certain alleged prior art of Dr. Peter Lee did not anticipate, arguing that “[r]ather than crediting [Bard's expert's] opinion as one the jury could accept, the [Anticipation Report] substituted its view of what Dr. Lee's work discloses and interpreted a few isolated statements by Bard and Dr. Buller as a concession that Dr. Lee's work does not necessarily disclose a stent with interconnected members” (id. at 1), and (2) the Anticipation Report's purported failure to resolve “whether the Vallbracht Invention could anticipate claims 32 and 40 of the '892 patent ” (id. at 8);

WHEREAS, on November 23, 2015, Plaintiff responded to Defendants' Anticipation Objections (D.I. 465), arguing that (1) the Anticipation Report correctly granted Plaintiffs Anticipation Motion with respect to the Lee references, because the Lee references did not necessarily include, under the doctrine of inherency, a particular limitation of the asserted claims (see id. at 4-7), and (2) the Anticipation Report actually granted Plaintiffs Anticipation Motion with respect to the “Vallbracht Invention” and that this was proper in light of the fact that, inter alia, “Bard has presented no evidence of Dr. Vallbracht ‘inventing’ anything thinner than 0.10 mm thick” (see id. at 8-9);

WHEREAS, the Court has considered the Anticipation Motion de novo, see Masimo, 62 F.Supp.3d at 379 ; 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3), and has further reviewed all of the pertinent filings;

NOW THEREFORE, IT IS HEREBY ORDERED that:

1. Defendants' Stamm Daubert Objections (D.I. 422) are OVERRULED. Judge Burke's Stamm Daubert Order (D.I. 411) is ADOPTED in all respects.³

2. The Stamm Daubert Order determined that “to simply exclude Ms. Stamm's testimony—full stop—does not seem equitable under the particular circumstances here. Ms. Stamm's testimony is critical to Gore's damages case, and her assessment of the technological comparability of these three licenses is in turn critical to that testimony.” (D.I. 411 at 14) The Court agrees with this assessment. Judge Burke did not abuse his discretion in permitting Dr. Criado an opportunity to supplement his expert report to “set out in writing the very opinion that Ms. Stamm has been relying on all along.” (Id. at 15-16) Whether or not Dr. Criado's supplemental report went beyond the scope of the opinion that he allegedly discussed with Ms. Stamm is a matter properly addressed with regard to Defendants' pending motion to strike his supplemental report (D.I. 422), and the Court will reserve judgment on this issue until deciding Defendants' motion to strike.

3. Defendants' Anticipation Objections (D.I. 434) are OVERRULED. Judge Burke's Anticipation Report (D.I. 428) is ADOPTED in all respects. Plaintiffs Motion for Summary Judgment of No Anticipation (D.I. 226) is GRANTED IN PART and DENIED IN PART, consistent with the Anticipation Report.

4. Defendants have adduced no evidence that the Lee references necessarily disclose anything other than unconnected, circumferential structures, e.g., “zig-zag” or “ring-like” members. The Court agrees with the Anticipation Report that connected versions of these structures are not expressly disclosed in the Lee references. Moreover, “[i]nherency ... may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.” Therasense, Inc. v. Becton, Dickinson & Co., 593 F.3d 1325, 1332 (Fed.Cir.2010) (emphasis omitted). “[P]robabilities or possibilities” are all that Defendants point to in their objections: specifically, the possibility that disclosed unconnected structures could turn into undisclosed connected structures.

5. Regarding the “Vallbracht Invention,” Defendants fault the Anticipation Report for leaving unresolved the question of whether the Vallbracht Invention could anticipate claims 32 and 40 of the '892 patent. However, as indicated in the Anticipation Report, it is actually the parties, not Judge Burke, who have left un-briefed the issue of whether the Vallbracht Invention anticipates. (See D.I. 428 at 28 n. 19) The Court will not fault Judge Burke for not deciding an issue that the parties have not fully briefed. As articulated in the Anticipation Report, “[t]o the extent the Vallbracht Invention discloses a specific numerical covering thickness of 0.10 mm, it does not anticipate as a matter of law.” (Id. ) The Court adopts this determination.⁴

6. Given the detailed reasoning provided in the Stamm Daubert Order and the Anticipation Report, and given that Defendants have not raised any arguments that are not adequately addressed therein, the Court finds it unnecessary to address Defendants' objections any further.

REPORT AND RECOMMENDATION

Christopher J. Burke, UNITED STATES MAGISTRATE JUDGE

In this action filed by Plaintiff W.L. Gore & Associates, Inc. (“Gore” or “Plaintiff”) against Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively, “Bard” or “Defendants”), Gore alleges infringement of United States Patent No. 5,735,892 (the “asserted patent” or the “patent-in-suit”).¹ Presently before the Court is Gore's Motion for Summary Judgment of No Anticipation (the “Motion”). (D.I.226) The Court recommends that the Motion be GRANTED–IN–PART.

I. BACKGROUND

A. The '892 Patent

The '892 patent, entitled “Intraluminal Stent Graft[,]” was issued on April 7, 1998. (D.I.96, ex. A)² The patent is directed to thin-wall intraluminal graft devices. The patent explains that implantation of conventional vascular grafts usually required invasive surgery that caused major trauma to the patient. ('892 patent, col. 1:9–20) As an alternative, some physicians had begun to use intraluminal devices that combined conventional vascular grafts with stents which were placed inside the damaged portion of the vessel using a less invasive “catheter type of delivery system.” (Id., col. 1:22–26, 37–38) However, the “relatively thick, bulky wall[s]” of prior art devices made them difficult to “be contracted into a small cross-sectional area for insertion into a blood vessel.” (Id., col. 2:10–15) The present invention claims thin-walled stent-graft devices “useful as an inner lining for blood vessels or other body conduits[,]” and methods of making such devices. (Id., col. 1:5–6)

B. Procedural History

On June 10, 2011, Gore commenced this action. (D.I.1) On January 10, 2014, Bard timely answered Gore's Second Amended Complaint, and asserted counterclaims against Gore. (D.I.189) On November 29, 2011, this case was referred to the Court by Chief Judge Leonard P. Stark to hear and resolve all pretrial matters, up to and including the resolution of case dispositive motions. (D.I.20) After a hearing, (D.I.130), the Court issued a Report and Recommendation on claim construction on August 8, 2014, (D.I.221). Chief Judge Stark overruled objections to that Report and Recommendation on September 28, 2015. (D.I.405)

Briefing on the instant Motion was completed on November 12, 2014, (D.I.333), and the Court held oral argument on the Motion (and various other summary judgment and Daubert motions filed in the case) on January 30, 2015, (D.I. 360 (hereinafter, “Tr.”)). A 10–day trial is set to begin on December 7, 2015. (D.I.362)

II. STANDARD OF REVIEW

A. Summary Judgment

A grant of...