On January 6, 2015, ALJ Bullock issued the public version of Order No. 30 (Dated December 23, 2014) in Certain Hemostatic Products and Components Thereof (Inv. No. 337-TA-913).
By way of background, this investigation is based on a complaint filed by Baxter alleging violation of Section 337 by Ethicon, Inc. and Ferrosan Medical Devices A/S in the importation into the U.S. and sale of certain hemostatic products that infringe one or more claims of U.S. Patent Nos. 8,303,981; 8,512,729; 6,066,325; 8,357,378; and 8,603,511. See our March 5, 2014 and April 4, 2014 posts for more details on the complaint and Notice of Investigation, respectively.
According to the Order, Respondent Ferrosan Medical Devices A/S ("Ferrosan") filed a motion seeking judicial enforcement of the subpoena ad testificandum to third-party Kilpatrick Townsend & Stockton LLP ("KTS") issued on July 8, 2014. Complainants Baxter International Inc., Baxter Healthcare Corporation, and Baxter Healthcare SA (collectively, "Baxter") filed an opposition to the motion.
In support of its motion, Ferrosan argued that the information requested by the subpoena is "reasonable, relevant and critical to an assessment of infringement of the patents in this investigation." According to Ferrosan, it needed access to the requested documents and information in order to fully investigate Baxter's infringement allegations as well as Ferrosan's defenses, including invalidity, prosecution history laches, inequitable conduct, and patent misuse. In response, Baxter argued that Ferrosan "failed to establish the purpose, relevance, or reasonableness of this subpoena in any particularized manner, particularly after having canceled the already-scheduled deposition of [KTS] just days before it was to take place." Baxter further claimed that KTS was willing to discuss a possible deposition if Ferrosan narrowed the scope of the subpoena, but Ferrosan refused to do so.
ALJ Bullock agreed with Baxter's arguments that Ferrosan failed to establish "the purpose, relevance, and reasonableness" of the KTS subpoena in a particularized manner and thus denied the motion. Specifically, ALJ Bullock noted that "[c]onclusory statements do not warrant judicial enforcement of a third-party subpoena." Moreover, ALJ Bullock determined that if Ferrosan truly believed it would be "materially prejudiced" if it was unable to depose KTS, then Ferrosan should not have canceled the already-scheduled deposition.