On October 8, 2014, Chief ALJ Charles E. Bullock issued the public version of Order No. 18 (dated September 18, 2014) in Certain Hemostatic Products and Components Thereof (337-TA-913).
By way of background, this investigation is based on a complaint filed by Baxter International Inc., Baxter Healthcare Corporation, and Baxter Healthcare SA (collectively, "Baxter") alleging violation of Section 337 by Ethicon, Inc. and Ferrosan Medical Devices A/S (collectively, "Respondents") 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, Baxter moved to compel Respondent Ferrosan Medical Devices A/S ("Ferrosan") to produce certain component samples of the accused products and for relief from the Procedural Schedule so that Baxter could supplement its opening expert reports and final infringement contentions after receiving and analyzing the requested samples. Ferrosan opposed the motion.
Baxter argued that the requested materials were reasonably calculated to lead to discovery of admissible evidence and that irrespective of whether the requested powder and solution are "imported or sold in the United States, they are indisputably components of the Accused Products and are relevant to the infringement claims in this Investigation." In opposition, Ferrosan argued that the motion should be denied because Ferrosan had already produced 20 samples of the accused SURGIFLO Hemostatic Matrix products and because none of the precursors sought by Baxter were imported, sold for importation, or sold after importation. Ferrosan also argued that Baxter was not asserting any claims that would require analyzing the precursor substances.
ALJ Bullock found that Baxter's argument was persuasive and that testing the precursor components of the Accused Products is relevant to Baxter's claims of infringement and is reasonably calculated to lead to the discovery of admissible evidence. ALJ Bullock found, however, that Baxter's request to supplement its opening expert reports and final infringement contentions was premature. Accordingly, Baxter's motion was granted-in-part.