A Medical Device Daily

Pall (East Hills, New York) has reported that U.S. District Court Judge George O'Toole, earlier this month, dissolved the injunction granted to Mykrolis (Billerica, Massachusetts) against Pall relating to Pall's PhotoKleen EZD-2 filter assemblies for the semiconductor market (Medical Device Daily, May 5, 2004).

In reviewing prior art, O'Toole found serious questions about the validity of the Mykrolis patents. Thus the injunction granted April 30, 2004, “is no longer in effect,“ Pall said.

O'Toole, however, held Pall in contempt of the injunction before it was dissolved. Pall said it intends to seek reversal of that ruling as incorrect.

Pall said it can seek to recover payment of costs and damages from Mykrolis, incurred from having been wrongfully enjoined.

Gilbert Weiner, Pall's general counsel, said, “We are pleased that the court has now held that the injunction should not have been granted and that there are serious doubts as to the validity of the Mykrolis patents. Pall is exploring the most expeditious manner of obtaining reversal of the finding of contempt, which may include reactivation of its appeal that has been on hold pending the rulings now issued by the court.“

Pall said that the revenues from the earlier-generation product subject to the injunction were “insubstantial,“ so there is little, if any, profit to disgorge to Mykrolis. Pall added that its current model of the slotless PhotoKleen EZD-3 is not a part of this litigation and has not been accused of infringement.

Pall is a leader in the field of filtration, separations and purification, its business organized around two broad markets: Life Sciences and Industrial.

In other legalities:

• Rubicor Medical (Redwood City, California), maker of the EnCapsule minimally invasive breast biopsy devices, reported that the lawsuit filed against it by Neothermia (Natick, Massachusetts) for breach of contract and patent infringement has been dismissed (MDD, Sept. 24, 2003).

James Vetter, MD, Rubicor CEO, said the ruling “is further evidence that our confidence [in our intellectual property] is well-founded,“ adding that 2005 “will be a year of great growth for Rubicor with the full-scale launch of the EnCapsule Precise and the EnCapsule Stereo product lines.“

Rubicor develops office-based breast biopsy devices for use by surgeons and radiologists. Neothermia is a developer of minimally invasive systems for the diagnosis of cancer.

• Mergen (San Leandro, California), a developer of oligo-based DNA microarray technology, reported entering into an agreement with Oxford Gene Technology (OGT; Oxford, UK) resolving the patent litigation between them. Mergen obtained from OGT a license for its expression chips in the U.S., Europe and Japan, allowing Mergen to manufacture and sell microarrays.

Mergen's ExpressChip DNA microarray system is a simple-to-use tool for high-throughput, high-sensitivity gene expression profiling used by pharma, biotech and research customers.

Dr. Jamie Love, Mergen's vice president of business development, said, “We believe that this license will give Mergen valuable freedom to operate and grow its expression profiling oligo microarray business throughout the world.“

Attorneys from Perkins Coie represented Mergen in the litigation.