Last year’s top Hearing Economics post listed some US patents granted in the hearing industry. The list may have stimulated readership, so another cherry-picked list of recent patents will show up in next week’s post and will be updated every few months. In the meantime, today’s post looks at the exciting afterlife of patents in biotechnology.
Patent Wars
Not everyone got Christmas gifts in December. Two of the Big 6 global hearing aid manufacturers got lumps of coal in their stockings. They were punished for patent infringement, which serves as a reminder that the patent process is “overwhelmingly” expensive, not only on the front-end, but also in the proverbial back-end where there’s always a competitor ready to bite even the most vigilant, litigious, and gigantic.
Biotechnology patent infringement lawsuits are “horrifically expensive,” but they are common because the stakes are so high. The patent winner can gain monopoly-like rights in the market place, attract investors, and leverage its negotiating position by using its patents as bargaining chips.
William Demant and Widex Take It On the Chin
On December 17, 2012, The U.S. Court of Appeals for the Federal Circuit a awarded $31 million in damages for patent infringement by defendants William Demant and Widex.{{1}}[[1]]What Did You Say? $31 Million Awarded For Infringement Of Hearing Aid Patent. Mondaq Business Briefing, December 17, 2012.[[1]] The plaintiff was Energy Transportation Group, Inc. (ETG). You can read all about it in the court filed document or check out this summary of the Federal Circuit Court’s affirmation of the District Court’s decision.{{2}}[[2]] Adding Claim Limitations In Response To A Rejection Of Closely Related Claims Without Explanation Creates Estoppel Barring Assertion Of DOE. Mondaq Business Briefing, November 22, 2012. [[2]]
If you’re provincial, like me, you may wonder who/what ETG is. It’s a family-owned Chinese shipping company that’s been in business since the 1890s. It diversified into electronics, software and biotechnology (among other things) in the 1980s. They’re not publicly traded, so no telling how big they are, but I’m guessing they are absolutely huge.
ETG won a lawsuit against Sonic Innovations in 2011 for patent infringement. Part of that judgment was subsequently reversed, but the part having to do with ‘850 patent was upheld. That seems to be the back story on the current judgment, though I do not know how Widex fits into the picture. (Readers will doubtless recall that I am an audiologist and budding economist, NOT a patent attorney).
The ‘850 patent infringements had to do with programmable filters to control acoustic feedback, patented back in 1986. At issue was whether “automatic” and “adaptable” were “anticipated” by the word “programmable” at the time of filing. One expert’s testimony for the defendants was especially compelling, or at least entertaining:
Dr. Dowling … stated in a Declaration introduced as evidence at trial that it was his view that “…the ETG filter can be adaptive for feedback cancellation,” and that “[no]body but a red faced liar could . . . say the ’850 [Patent] does not contemplate adaptive filtering.”
Them’s fightin’ words out West and in the US Court of Appeals. The jury didn’t go for Dowling’s howling, instead noting that the defendants’ “… accused product performs substantially the same function in substantially the same way with substantially the same result” as claimed in the original patent.
Red faced liar or not, last man standing is the one who holds the most and oldest patents.
Tune in next week for a list of recent, interesting biotechnology patents for hearing and hearing devices. As you’d expect, it’s Game Up among all the players, big and little.
Photos courtesy of paid content and signals mag
