A Medical Device Daily

In response to Diomed 's (Andover, Massachusetts) assertions in a recently issued press statement (Medical Device Daily, Sept. 1, 2006), that U.S. District Judge Nathaniel Gorton has ruled as valid and enforceable the company's U.S. patent No. 6,398,777 – which covers the endovascular laser treatment of varicose veins – two companies involved in litigation with Diomed issued statements of their own calling into question many of its assertions about the victory alleged by Diomed.

One defendant, Vascular Solutions (Minneapolis), said that the judge did not find in favor of any of the parties involved in the patent litigation.

“The decision entered by the court yesterday afternoon denies all parties', including Diomed's, motions for summary judgment concerning infringement,” said Howard Root, CEO of Vascular Solutions. “By way of background, a summary judgment motion is a request for the judge to rule, as a matter of law, that a party's position prevails. It is not a determination of factual disputes regarding whether infringement has occurred. It has always been Vascular Solutions' position that the sale of Vari-Lase products does not infringe Diomed's single licensed method patent because they do not include the step of placing the laser fiber tip in continuous apposition to the vein wall, as required by the patent. Vascular Solutions' position was not adjudicated by the court in this decision, but instead will be the subject of a trial that we expect will be held sometime during 2007.”

Another defendant,AngioDynamics (Queensbury, New York), said that Judge Gorton denied Diomed's request for summary judgment on patent infringement by AngioDynamics (the original complaint in this case) and also denied AngioDynamics' summary judgment motion of non-infringement, citing genuine issues of material fact.

In defeating Diomed's motion, AngioDynamics pointed to the “narrow scope” of Diomed's patent and to the “tenuous and circumstantial” nature of its infringement claims. Separately, the court granted Diomed's limited motion for summary judgment that its patent is valid and enforceable over certain prior art.

“While we are disappointed in the Judge's conclusion regarding the minor issues of validity and unenforceability, we are very pleased with the court's construction of the patent claims and the views expressed on the issues of infringement. We look forward to successfully resolving this case at trial,” said Eamonn Hobbs, president/CEO of AngioDynamics.

In January 2004, Diomed began legal action in the U.S. District Court for the District of Massachusetts against AngioDynamics, seeking injunctive relief and damages for infringement of the disputed patent which is a key part of Diomed's EndoVenous Laser Treatment system.

Diomed asserts that it acquired exclusive rights to the patent from the five inventors of the procedure in September 2003. Diomed initiated similar actions against Vascular Solutions and two other competitors, Total Vein Solutions (Houston) and CoolTouch (Roseville, California) later in 2004.