Medical device patent infringement cases, like all patent infringement cases, must be appealed to the U.S. Court of Appeals for the Federal Circuit in Washington, D.C.  People often refer to this Court as the “Federal Circuit.”  The Federal Circuit is a highly specialized court hearing only certain types of cases, with one of those types being patent cases.  For many, it will be the final arbitrator of their medical device infringement case.

So, what does a medical device company need to know about filing an appeal?  The appellate process starts soon after the trial court enters final judgment.  Any party seeking to appeal the judgment must file a notice of appeal with the trial court.  It is imperative that your counsel files your notice of an appeal on time with the trial court.  Just ask AT&T.  Earlier this year, they were blocked from appealing a $40 million patent verdict against them, because their lawyers missed the appeal deadline.  That hurts.

Often times, even the “winner” at the trial court may need to file a notice of appeal if it did not win on all issues.  For example, if a medical device patent holder wins on infringement of some claims, but not all claims, it may want to file a notice of appeal on the claims adjudicated not to infringe.

Similarly, if a medical device company accused of infringement wins on that issue, but not on validity, then it will likely want to appeal the validity judgment.  This is to hedge against the Federal Circuit reversing the non-infringement ruling on appeal.  It is also wise to consider whether a reversal on certain issues is needed for potential future cases on related patents.  For example, BlueSky Medical won a non-infringement verdict against Kinetic Concepts, Inc. before the trial court in San Antonio, but the jury did not find the patents invalid as BlueSky and its co-defendant, Medela, Inc., had urged.  As appellant counsel for BlueSky Medical, we appealed the validity ruling, while also defending the non-infringement judgment.

Another strategic call to make is when to file a notice of appeal.  The party that files their notice first will be the appellant in the appeal.  The appellant files the first brief, giving them the ability to lay out the facts of the case first.  And we all know what they say about first impressions.  This strategy was employed by the defendants in the Kinetic Concepts case.

Once the parties timely file their notice of appeal, the Federal Circuit will “docket” the appeal, which starts the clock running for the appellant to file their opening brief.  Appellants have 60 days to file their opening briefs, but the deadline may be extended 60 days with agreement from the other side.  Appellees then have 40 days to file their responsive briefs, which can also be extended 60 days.  Finally, appellants may file a reply brief 14 days after service of the appellee brief.  There are additional briefs allowed when both parties appeal.  That type of appeal is known as a cross-appeal.

So how can a medical device company ensure the proper appellate strategy is employed when filing a notice of appeal with the trial court?  Retain appellate counsel early and choose the right counsel.  A good appellate counsel is worth her weight in gold.  Just ask AT&T.