APPEALS COURT KEEPS MEDRAD PATENT SUIT AGAINST TYCO ALIVE

A U.S. appeals court ruled Oct. 16 in favor of German firm Schering AG's U.S. affiliate Medrad in a patent case against Tyco Healthcare Group and three co-defending firms.

The suit involves Medrad's '602 reissue patent for patient infusion systems used with magnetic resonance imaging devices.

Medrad filed a complaint in 2000 with the U.S. Trade International Commission alleging illegal importation of devices infringing on its '648 reissue patent, which an administrative law judge initially found to be invalid because Medrad had failed to file supplementary declarations on previous errors related to overclaiming and inventorship.

The corrected application for the '648 patent led to the '602 patent, which Medrad sued Tyco for infringing on in October 2001. A district court judge ruled against Medrad in that case, arguing the '648 reissue patent was invalid because the error Medrad had corrected was "procedural" and not an error in specification, drawings or claims.

In overturning that ruling, the U.S. Court of Appeals for the Federal Circuit concluded the defect that led to Medrad's '602 reissue patent was "the type of defect that can be corrected" under the applicable statute, which says "if an error is without deceptive intent" a patent may be reissued when it is deemed "wholly or partly inoperative or invalid 'by reason of the patentee claiming more or less than he had a right to claim in the patent.'"