Judge Issues Rare Injunction In C.R. Bard Unit's Patent Case

A Delaware federal judge on Tuesday barred sales of CryoLife Inc.'s PerClot blood-clotting powder after finding that C.R. Bard Inc. unit Medafor Inc. had shown that the product likely infringes its patent, in a relatively rare instance of a judge granting a preliminary injunction in a patent case.

U.S. District Judge Sue L. Robinson ruled that Medafor had satisfied the test for securing a preliminary injunction, including showing a reasonable likelihood that it will succeed on the merits and would suffer irreparable harm if CryoLife's product remained on the market.

CryoLife's PerClot Topical, launched last fall, competes with a Medafor product called Arista that was approved by the U.S. Food and Drug Administration in 2006. Both are powders used to control bleeding when conventional methods are ineffective.

Judge Robinson noted that a preliminary injunction is an "extraordinary remedy" that should be granted only in "limited circumstances," but held that Medafor had met the standard, both with regard to infringement and irreparable harm.

"There is sufficient record evidence that CryoLife's PerClot product is in direct competition with Medafor's Arista product and that these products are targeted to the same customers and hospitals," she wrote. "Medafor has made persuasive arguments for the loss of its customer base and damage to its goodwill."

The dispute began in April, when CryoLife filed suit seeking declaratory judgment that PerClot Topical would not infringe Medafor's patent. Medafor responded by filing an infringement counterclaim and seeking a preliminary injunction. CyroLife began selling PerClot Topical last fall.

Judge Robinson found that Medafor had shown that CryoLife likely infringes and that CryoLife was unlikely to show that the patent is invalid.

The infringement issue hinged on competing claim constructions offered by the parties. The judge held that Medafor's claim construction is more consistent with the patent and that CryoLife had not offered any noninfringement arguments using those constructions.

The judge also held that CryoLife's argument that Medafor's patent is invalid as anticipated or obvious was not supported by expert testimony or declarations and was supported with "the barest of attorney argument."

"Attorney argument is not evidence. Medafor has shown a likelihood of success of arguing against CryoLife's invalidity arguments," she wrote.

An attorney for Medafor declined to comment on the decision. A representative for CryoLife could not immediately be reached for comment Wednesday.

The patent-in-suit is U.S. Patent Number 6,060,461.

CryoLife is represented by John W. Cox, Chittam U. Thakore, Mary W. Bourke and Dana K. Severance of Womble Carlyle Sandridge & Rice LLP.

Medafor is represented by Steven Cherny, Joseph A. Loy, Steven T. Skelley, Leslie M. Schmidt, Amanda Hollis, Elizabeth A. Cutri, Michael A. Pearson and John C. O'Quinn of Kirkland & Ellis LLP, and Jack B. Blumenfeld, Maryellen Noreika, and Michael J. Flynn of Morris Nichols Arsht & Tunnell LLP.

The case is CryoLife Inc. v. C.R. Bard Inc. et al., case number 1:14-cv-00559, in the U.S. District Court for the District of Delaware.

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