A Medical Device Daily

Third Wave Technologies (Madison, Wisconsin) reported that Stratagene (La Jolla, California) has posted a $21 million bond with the U.S. District Court for the Western District of Wisconsin in Third Wave's name that secures the damages and attorneys' fees awarded to the company in its successful patent infringement suit against Stratagene.

“The $21 million bond is posted with the federal court in Third Wave's name and ensures that [we] will be able to recover the award for Stratagene's willful infringement of our patents, pending successful resolution of the appeal,“ said Kevin Conroy, president and CEO of Third Wave. “Stratagene's bond is backed by the Travelers Casualty and Surety Co. and represents a commitment that we believe is outside the reach of Stratagene's creditors. We expect the appeal process to take fewer than 18 months and believe we have a strong position on appeal.“

A federal jury last fall found that Stratagene infringed two key Third Wave patents covering its proprietary molecular methods (Medical Device Daily, Sept. 2 2005). The jury also has found Stratagene liable for willful patent infringement, originally set at $5.3 million in damages (MDD, Sept. 7, 2005).

The judge overseeing the case tripled the damages awarded to Third Wave to $15.9 million and ruled that Stratagene must pay Third Wave's attorney fees, in an amount to be determined by the court, as a result of the willful infringement (MDD, Dec. 20, 2005).

The judge in late September also entered a permanent injunction that prohibits Stratagene from making, selling or offering to sell its FullVelocity QPCR and QRT-PCR products and any other products that practice Third Wave's patented Invader methods.

Third Wave is focused on the development and marketing of molecular diagnostics for a variety of DNA and RNA analysis applications.

In other legalities:

• BlueSky Medical Group (Carlsbad, California) reported that the U.S. District Court has issued its ruling on the November Markman hearing in Kinetic Concepts' (KCI; San Antonio) patent suit against BlueSky Medical. In its ruling, the court construed certain terms of U.S. patent nos. 5,636,643 and 5,645,081.

BlueSky Medical said it believes that the court ruling is “consistent with a favorable view to BlueSky's desired position.“ The company said the court made a key distinction in interpreting claims associated with the type of cover.

Separately, BlueSky has requested the FDA clarify its safety alert on “Vacuum Assisted Wound Closure,“ issued in November 2005.

“The increased number and severity of adverse events on the Morykwas Approach, including deaths that are being reported while patients are using the competitor's product, is of concern to BlueSky,“ the company said.

Blue Sky said it would “like to ensure that there is a clear distinction between the competitor's product and the BlueSky Versatile 1 Wound Vacuum System and the Chariker-Jeter Wound Sealing Kits.“

BlueSky Medical filed in February 2005 an antitrust counterclaim, and is seeking substantial recoveries for damages caused by KCI's business practices and has recently added additional claims and allegations that KCI has interfered with BlueSky Medical's business opportunities and made disparaging statements concerning its products.

“KCI, for example, wrote to the FDA and requested that the 510(k) for the Versatile 1 product be overturned,“ BlueSky said.