More on re-examinations and litigations

In an apparent first Office Action in a re-exam of US 5,674,457, the USPTO reviewed HemoCue's patent claims and found that each claim of HemoCue's patent was invalid. Competitor Stanbio uses a microcuvette that is a blood collecting and testing device used with Stanbio's HemoPoint® H2 Photometer.

The press release of Stanbio of Boerne, Texas also noted: "There has been a great deal of misinformation circulated about patents once we introduced our HemoPoint® H2 hemoglobin testing system. We believe the USPTO finding definitively supports our long-standing belief that HemoCue's claims have no basis," said Pippin. "Stanbio has world-class products and we will continue to offer them globally."

According to Pippin this legal battle is a true case of David vs. Goliath. He suggests that HemoCue is using its much greater size to try to keep HemoCue's customers from being free to choose Stanbio products.

It is apparent that re-exams are being used more frequently these days, and perhaps the USPTO should update its statistics (see here and here).

Also, there is no doubt that patent litigation cost statistics show the median cost of a patent litigation in Boston, New York, Chicago, and California to be above two million dollars. Re-exams are apt to be used more frequently.

One party cannot always control costs in a litigation. As pointed out on Mondaq:

One of the largest factors is the litigation style of opposing counsel and opposing counsel.s client. In fact, in the author.s experiences, this could account for 50% of the entire budget. The more aggressive the opposing counsel, however unreasonable it may be, the more costly the case. If your opposing counsel has a reputation for being overly aggressive, the case almost certainly will be more expensive. An outside counsel’s response to such aggressiveness also is a big factor in cost. If outside counsel feels a need to respond in the same way to every aggressive act then the costs will rise.