Federal Circuit Issues an Opinion in 40 year Dispute over “Gore-Tex” Blood Vessel Graft Patent

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(January 13, 2015)  The United States Court of Appeals for the Federal Circuit affirmed a lower court’s finding that W.L. Gore & Associates, Inc. (“Gore”) willfully infringed U.S. Patent No. 6,436,135 (“the ’135 patent”) .  The ’135 patent, entitled “Prosthetic Vascular Graft,” states that its invention relates to vascular prostheses fabricated from highly expanded polytetrafluoroethylene [ePTFE].”  According to the opinion, ePTFE is sold by Gore under the brand name “Gore-Tex®.”  Figure 3 from the ‘135 patent is illustrated below:

According to the opinion, the dispute over the ’135 patent began with the filing of the 1974 patent application from which the ’135 patent issued – twenty-eight years later.  The opinion states that during the pendency of the patent application, there was a dispute over inventorship between, inter alia, Peter Cooper, a Gore employee who assigned his rights to Gore, and Dr. David Goldfarb, who assigned his rights to C. R.  Bard, Inc. (“Bard”).  The opinion also notes that the patent office awarded the patent to Dr. Goldfarb and the patent issued in August 2002.

The opinion indicates that in 2003, Bard Peripheral Vascular, Inc. (“BPV”) and Dr. Goldfarb filed a complaint against Gore for infringement of the ’135 patent, and a jury found the ’135 patent valid and that Gore willfully infringed.  After a lengthy procedural history, including three prior Federal Circuit decisions, the Federal Circuit affirmed a finding of willful infringement.

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