© 2018 The Texas Lawbook.
By Natalie Posgate
(July 12) – Lawyers from McKool Smith have scored a Patent Trial and Appeal Board win against a subsidiary of Johnson & Johnson over claims that the company infringed on technology for sinus surgery developed by a Dallas ear, nose and throat specialist.
It is the second time for the McKool team, led by shareholder Ashley Moore, to score an inter partes review win for Dr. Ford Albritton IV against Irvine, California-based Acclarent, a company that develops devices for the field.
A final ruling by the PTAB Monday allows the resumption of a federal lawsuit Dr. Albritton filed in Dallas against Acclarent in December 2016 in Chief U.S. District Judge Barbara Lynn’s court.
As Moore explained, the patented technology that Dr. Albritton invented allows ENT surgeons to work with an all-in-one device with all the essential tools needed for balloon sinuplasty. Before Albritton’s invention, Moore said, the surgery required a precise juggling of multiple tools with an almost unrealistic amount of strength and dexterity.
“Before he came up with the idea, the surgeon would potentially be holding one device dedicated to the visibility in someone’s sinus cavity… a separate suction device… then another device used to perform the surgery,” Moore said.
“So he says, ‘Instead of having all the tools in two hands, let’s maybe combine some of this and create a new device that has a handle that allows the surgeon to just use one hand.’ The sinus is a very fragile cavity… it’s pretty important to not bump into anything or injure other areas.”
According to court documents, Dr. Albritton was the first surgeon to perform a balloon dilation procedure in Dallas and the first to perform that procedure in the whole state.
Acclarent’s lawyers did not immediately respond to a request for comment. Boston attorney Lisa Adams of Mintz, Levin, Cohen, Ferris, Glovsky and Popeo represented Acclarent at the PTAB proceedings in Alexandria, Virginia, while California partner William Rooklidge of Gibson, Dunn & Crutcher is the lead attorney for Acclarent in the case in Judge Lynn’s court. According to the docket sheet, Dallas Gibson Dunn attorneys Bill Dawson, Betty Yang, Theodore Kwong and Tracey Davies are also involved.
In that case, which Moore is also leading, Dr. Albritton alleges fraud, breach of contract and patent infringement against Acclarent. According to the lawsuit, Acclarent violated a nondisclosure agreement with Dr. Albritton when the company used his confidential information to develop its Relieva Spinplus, a medical device that infringed on Albritton’s innovations. Dr. Albritton provided consulting services to Acclarent for several years.
Moore said summary judgment arguments are currently set for next March and trial is set for next July.
After Dr. Albritton sued Acclarent, the medical devices company filed for inter partes review of Albritton’s patent (U.S. Patent No. 9,011, 412) with the PTAB, arguing the apparatus and system claims in the ‘412 patent were invalid over prior art. Each side presented oral arguments before the panel on April 24. In a 41-page ruling, the panel rejected Acclarent’s claims.
Acclarent also challenged Dr. Albritton’s method claims in a separate petition, which the PTAB declined institution earlier this year.
Moore said the outcome is somewhat unique because PTAB has “a reputation for being a government body that tends to take patents and find them invalid.
“That has been the statistic since the AIA went into law,” she said. “I think they did a really good job. They asked very [good] questions and got the decision right and upheld the patent for the patent owner. It’s becoming more common but it’s by no means the usual course.”
Other McKool attorneys representing Dr. Albritton include associates Meredith Elkins, Travis E. DeArman and Alexandra Easley.
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