On November 18, 2014, ALJ Bullock issued the public version of Order No. 19 (Dated September 29, 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 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, the "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 (collectively, the "Asserted Patents"). 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 filed a motion to compel the Respondents to supplement their non-infringement contentions. Baxter argued that "it is prejudiced by the absence of a meaningful response from Respondents because it cannot assess and analyze the merits of any non-infringement theories and any evidence supposedly supporting such theories." Baxter further asserted that Respondents' failure to provide meaningful non-infringement contentions prevents Baxter from being adequately prepared for mediation.
In opposition, Respondents and the Commission Investigative Staff ("OUII") argued that the Respondents' non-infringement contentions were adequate because it is Baxter that bears the burden to prove infringement. Both Respondents and OUII asserted that the Respondents' non-infringement contentions were detailed and sufficiently particularized. Additionally, the Respondents noted that both parties are in the same position with respect to mediation because both parties have only exchanged opening expert reports.
ALJ Bullock agreed with the Respondents and OUII. Accordingly, ALJ Bullock denied Baxter's Motion to Compel.