Tuesday, January 03, 2012

Marctec loses appeal at CAFC vs. J&J/Cordis

The CAFC mentioned the term "junk science":

After the district court granted summary judgment in its favor, Cordis moved to have MarcTec’s suit declared exceptional under 35 U.S.C. § 285, and to be compensated for its reasonable attorney and expert witness fees. In its motion, Cordis argued that MarcTec engaged in litigation misconduct by, among other things: (1) misrepresenting claim construction law to avoid intrinsic evidence; (2) mischaracterizing the district court’s claim construc- tion; and (3) offering “junk science” that was unreliable, untestable, and had no relevance to this case. Cordis further argued that MarcTec filed a frivolous and baseless lawsuit and acted in bad faith by continuing to pursue its claims without any evidence of infringement.


Next, the district court found that MarcTec relied upon inadmissible expert testimony that was “untested and untestable” and did not meet the scientific reliability standards set forth in Daubert. In particular, the court excluded MarcTec’s expert’s theory that spraying the drug/polymer coating onto the Cypher stent at nearly the speed of sound would generate heat. Id. at *13-16. Al- though we agree with MarcTec that exclusion of expert testimony under Daubert does not automatically trigger a finding of litigation misconduct, and in most cases likely would not do so, we find that the circumstances of this case were sufficiently egregious to support an award of attorney fees.


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