A Medical Device Daily

Diomed Holdings, (Andover, Massachusetts), a provider of minimally invasive technologies, including its patented EndoVenous Laser Treatment (EVLT) for varicose veins, reported that the court has set Jan. 18 as the date to hear its request for a preliminary injunction against Total Vein Solutions (Houston) in a patent dispute concerning U.S. Patent No. 6,398,777 covering the endovascular laser treatment of varicose veins.

Diomed commenced legal action against Total Vein, seeking damages for the alleged infringement of its ‘777 patent in 2004.

In a separate 2006 hearing against defendants AngioDynamics, and Vascular Solutions, Judge Gorton ruled that Diomed’s ‘777 patent is both valid and enforceable.

In the trial ending on March 28, 2007, the jury found these two defendants liable for both inducing infringement and contributory infringement of Diomed’s patent. Judge Gorton subsequently granted Diomed a permanent injunction against them and awarded Diomed a total of $14.7 million in damages.

James Wylie, president/CEO of Diomed, said, “We have been pleased with the court’s previous rulings which prohibit two of our competitors from selling their infringing lasers and disposable products. Now that the court has found Diomed’s patent to be valid and enforceable and a jury has found competing contact-based laser fiber systems to infringe, we believe that an immediate injunction of Total Vein Solutions’ sales of such infringing products would be timely and appropriate.”

In another case related to Diomed, the patent infringement suit brought by VNUS Medical Technologies, (San Jose, California) against three endovenous laser competitors, Diomed (Andover, Massachusetts) AngioDynamics (Queensbury, New York) and Vascular Solutions, (Minneapolis, Minnesota) has been scheduled to start June 23, 2008.

The jury trial is expected to last three to four weeks, with VNUS seeking an injunction and compensatory damages from the defendants.

Judge Maxine Chesney of the U.S. District Court for the Northern District of California said she set the June 23 trial date to allow sufficient time for completion of a criminal case the judge is overseeing beginning Feb. 11.

In other legalities:

• Cynosure (Westford, Massachusetts) reported filing a lawsuit against CoolTouch (Roseville, California), charging infringement of a Cynosure patent covering it Smartlipo system, which uses laser energy to melt fat and tighten skin, by a similar product CoolTouch calls CoolLipo.

Cynosure said it has an exclusive license on the patent from Italian laser firm El.En. SpA, the firm’s largest shareholder and a plaintiff in the suit against CoolTouch. The lawsuit has been filed in the U.S. District Court of Massachusetts.

CoolTouch has responded by saying that its CoolLipo 1320 wavelength laser was designed to be superior to the Cynosure SmartLipo 1064 technology and does not infringe.

CoolTouch said that “thousands of pulsed lasers with specifications identical to the SmartLipo have been sold since the mid-1980s. The fiber optic and delivery handpieces described in the ‘873 patent have also been commercially available for over 20 years for use in orthopedics, general surgery, urology and oral surgery. Combine this ‘off-the-shelf technology’ with the pioneering clinical work by Drs. Dressel and Apfelberg and others in the early 1990s on laser-assisted lipolysis and the Paolini patent claims are obvious, invalidating the patent. The recent Supreme Court rulings on obviousness may also play a role in invalidating these patents.

Dave Hennings, CEO of CoolTouch, said, “We welcome the opportunity to establish the facts with respect to patents that Cynosure claims are being infringed through our sales of the CoolLipo laser for laser-assisted lipolysis. It will be good to get the facts established so that we can continue to focus on providing the latest technology to our present and future esthetically-focused physicians.”

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