Coloplast (Humlebaek, Denmark) sued Mpathy Medical Devices (Raynham, MA) for infringement of Patent Nos. 6,638,211 and 7,621,864 for treating urinary incontinence in women. Coloplast alleges that certain devices are sold by Mpathy with particular instructions to use the devices in surgical procedures in a manner that infringes Coloplast’s patents. The complaint only alleges inducement and contributory infringement; it does not accuse Mpathy of direct infringement.
Coloplast is facing the same problem many patent holders face when asserting method claims against medical device companies, namely it cannot assert a claim of direct infringement against the device manufacturer and must rely on inducement / contributory infringement theories. This is a tough row to hoe in several ways, but two in particular leap to mind. First, Coloplast must prove at least one instance of direct infringement (even if not by Mpathy itself) to establish any claim. Second, since the holding in DSU Medical Corp. v. JMS Co., 471 F.3d 1293 (Fed. Cir. 2006), the bar for proving inducement has been raised much higher and Coloplast must show that Mpathy specifically intended for its customers to infringe. [UPDATE - Just before this filing the Federal Circuit decided SEB S.A. v. Montgomery Ward, 2009-1099 (Fed. Cir. Feb. 5, 2009), http://www.cafc.uscourts.gov/opinions/09-1099.pdf, holding that deliberate indifference to the existence of a patent is sufficient to support an inducement finding.]
Also Coloplast may have difficulty proving lost profits since its U.S. subsidiary (Coloplast Corp. in Minneapolis, MN) appears to be the entity selling competing goods while the patent is held by the Danish parent.
Coloplast A/S v. Mpathy Medical Devices, Inc., 10-10206-RGS (D. Mass. Feb. 8, 2010)