A Medical Device Daily

A U.S. District Court in Boston has dismissed the Diomed (Andover, Massachusetts) lawsuit between Endolaser (New York) and CoolTouch (Roseville, California) after CoolTouch signed a settlement agreement with Dr. Luis Navarro. CoolTouch said this patent infringement suit originally was filed in 2004 and relates to the use of lasers for endovenous ablation.

CoolTouch will license the '777 Navarro patent and pay royalties on CTEV laser sales and accessories that potentially allow vein wall contact with the emitting part of the fiber.

In a separate patent matter, CoolTouch, working with the Boston law firm of McCarter & English, has filed a re-examination request with the U.S. Patent and Trademark Office of the '873 Paolini laser lipolysis patent assigned to Cynosure (Westford, Massachusetts), which is the subject of litigation between the parties.

CoolTouch requests the re-examination based on prior art by Dr. David Apfelberg and David Hennings. The company has filed for a stay in the litigation until the patent office rules on the validity of this patent. It said that more than 70% of re-examinations by the PTO result in claim rejections.

Until the stay is accepted, CoolTouch said it believes that the court will also rule in its favor on the issue of non-infringement. On Dec. 22, 2008, the court's Markman ruling rejected Cynosure's attempts to define "adjacent" to mean "in the vicinity of" the tip of the needle (Medical Device Daily, March 5, 2009). The court said that "adjacent" means "next to" the tip of the needle.

The CoolTouch CoolLipodevice uses a fiber that extends 5 mm beyond the tip of the cannula and is clearly not "next to" the tip of the cannula, the company said.

Recently, the patent office has published two new CoolTouch patent applications that relate to laser-assisted lipolysis. These new patent applications are continuations-in-part of issued patent No. 7,217,265, filed in May 2005, and cover laser lipolysis devices such as thermal sensing, suction handpieces and placement of the fiber optic in direct contact with the tissue.

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