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Gibson, Dunn & Crutcher scored the reversal of a $140 million patent infringement award against client St. Jude Medical Inc. in a ruling issued Feb. 13 that also sharply criticized opposing counsel and its star witness. U.S. District Judge David Hamilton of the Southern District of Indiana said the expert witness on whom the opposing counsel built its case lied before, during and after trial — and that the attorneys who hired him were derelict for not catching it. The ruling, in Cardiac Pacemakers v. St. Jude Medical, ends a six-year legal battle that generated the largest patent infringement verdict of 2001. Last July, a jury sided with Cardiac, along with Guidant Sales Corp. and Eli Lilly and Co. St. Jude was accused of infringing on a patent for implantable heart defibrillator devices. Hamilton reversed the verdict, and also invalidated the patent claims at issue in the original case. Further, he said that if his ruling is overturned on appeal, St. Jude is entitled to a new trial and reimbursement for the millions spent fighting the initial case. “This is a case in which those interested in the patents have attempted to stretch too far the rewards of the patent system,” Hamilton wrote in his scathing, 186-page ruling. “This attempt was made by expanding patent claims beyond the written description, by double patenting, by violating the statutory best mode requirement, by procuring patents to obvious improvements on the basic invention and by offering flimsy theories of infringement and even false testimony from the key expert witness,” Hamilton wrote. Chicago’s McAndrews, Held & Malloy represented the plaintiffs and could not be reached for comment by press time. Edward Reines, a Weil, Gotshal & Manges intellectual property partner in Redwood Shores, called the ruling “scandalous” for plaintiffs counsel and said he’s never heard of a ruling that criticized so harshly the lawyers involved. “The pressures of high-stakes patent litigation create situations where people might be forced to engage in inappropriate conduct,” Reines said. “The no-holds-barred style in patent disputes is an increasing phenomenon, and this case reflects someone getting caught going over the line.” Denis Salmon, a Gibson Dunn partner in Palo Alto, called the victory a career best and said he is confident the win will hold, if appealed. “The judge’s decision is so thorough and finds for us on multiple grounds,” he said. In fact, the plaintiffs will likely end up paying a judgment to St. Jude Medical. Hamilton ruled that St. Jude was entitled to sanctions and called for a hearing to determine what the damages are. The key witness for the plaintiffs was Dr. Joe Bourland, a Purdue University faculty member. According to the court documents, he was an expert witness in another, similar matter in which he issued opinions at odds with those he gave in the Cardiac Pacemakers dispute. “Dr. Bourland’s false direct testimony enabled CPI to present Dr. Bourland to the jury as more of an honest academic researcher than as a ‘hired gun’ expert witness,” Hamilton wrote.

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