A Medical Device Daily

A federal judge this week indicated that she would throw out three perjury charges against Richard Scrushy, founder and former CEO of HealthSouth (Birmingham, Alabama), being tried for conspiracy in a widespread accounting fraud by the company.

U.S. District Judge Karon Bowdre told jurors they would have “three fewer charges” to consider, though not explaining the reasons. She said the trial would move ahead on 55 other counts.

Bowdre granted a defense motion to bar jurors from hearing evidence about Scrushy’s sworn statement to an investigator from the Securities and Exchange Commission (SEC). Scrushy had been charged with three counts of perjury for allegedly lying in a statement provided to the SEC in 2003.

Scrushy’s is the first case being tried under the Sarbanes- Oxley Act, which requires top executives to be strictly ac-countable for a company’s financial auditing.

In other legalities:

• AngioDynamics (Queensbury, New York) reported that it had won a “favorable” Markman ruling in its patent dispute with Diomed (Andover, Massachusetts), a subsidiary of Diomed Holdings. It said that a U.S. District Court judge has rejected Diomed’s interpretation of certain claim limitations, agreeing with AngioDynamics’ position on certain limitations and that the ruling “effectively reinforced AngioDynamics’ position that it does not infringe the ’777 patent.”

Diomed last year filed suit against AngioDynamics, claiming infringement by AngioDynamics’ endovascular laser venous system used for treating severe varicose veins. The ’777 patent covers a method of endovascular laser treatment of varicose veins.

Eamonn Hobbs, president and CEO of AngioDynamics, said the ruling “reinforces our conviction that our Venacure product does not infringe the Diomed patent.”

The Venacure endovascular laser venous system is an alternative for the treatment of severe varicose veins.

• Nellcor (Pleasanton, California), a developer of pulse oximetry technologies, reported that the U.S. Court of Appeals for the Federal Circuit, in Washington, issued a key decision relating to Nellcor’s U.S. patent No. 4,934,372, enabling Nellcor to proceed with its patent infringement lawsuit vs. Masimo.

The interpretation, Nellcor said in a statement, “is important because a patent’s meaning often becomes a determining factor in infringement cases.” Nellcor said the patent is important for pulse oximetry signal processing which provides a way to increase the accuracy of calculations used to monitor a patient’s blood oxygen saturation.

Nellcor asserts that its patent covers one of the core elements of Masimo’s pulse oximetry products, as well as products that Masimo supplies to other manufacturers of patient monitoring systems.

David Sell, president of Nellcor, said that the ruling “reinforces our belief that when the legal process is complete, we will ultimately prevail against Masimo.”