ALPS South, St. Petersburg, Florida, filed an opposition brief on March 19 requesting that the U.S. Court of Appeals for the Federal Circuit affirm a finding that WillowWood, Mt. Sterling, Ohio, engaged in inequitable conduct during re-examination of a prosthetic patent and asked it to hold WillowWood liable for even more misconduct, reports Law360.
The original suit dates back to December 2004 when WillowWood filed a complaint against ALPS for infringement of U.S. Patent No. 5,830,237 (237), titled “Gel and Cushioning Devices.” Litigation has been ongoing since that time. On September 24, 2014, the U.S. District Court for the Southern District of Ohio ruled that Patent 237 is unenforceable due to inequitable conduct and found that ALPS is entitled to reimbursement of its attorneys’ fees incurred in the litigation since September 30, 2011.
The March 19 brief states that the district court committed two errors, first when it did not find that WillowWood engaged in inequitable conduct in the first re-examination proceedings, and when it did not consider that WillowWood could have engaged in misconduct when it acquired two related patents. ALPS is also asking for the granting of attorney’s fees for the decade-long litigation, and not just for attorneys’ fees incurred since September 30, 2011.
WillowWood President Ryan Arbogast issued the following statement: “After careful consideration and discussion with our legal counsel, in October 2014 WillowWood appealed the ruling in the case of inequitable conduct. We believe we acted ethically and we stand by our conduct during the second re-examination of patent 5,830,237.”
A request for a comment was submitted to ALPS, but the company has not responded.