In March, the U.S. District Court for the District of Delaware found that Dexcom violated a single patent belonging to Abbott and its FreeStyle Libre sensors. However, the court found that Dexcom did not infringe on two others alleged by Abbott, and that another was invalid. Jurors denied that Dexcom willfully infringed on the IP as well.
As a result, the judge overseeing the case determined the need for a later trial with a different jury. That trial would judge the damages owed by Dexcom to Abbott related to the single infringed patent. However, both companies now seek a new trial, with Dexcom asking for judgment on the infringement and Abbott believes Dexcom willfully infringed on its patents, including the ones the jury said weren’t infringed upon.
Abbott says in its court brief that Dexcom claimed that it could redesign the G6 CGM and bring it to market in 8.3 weeks. The company says Dexcom “continues to infringe” more than 8.3 weeks after the jury’s verdict. Abbott called it “the epitome of willfulness.”
“Abbott requests a new trial to address Dexcom’s willful infringement,” the brief reads. “The jury’s willfulness verdict is against the weight of the undisputed evidence—Dexcom’s monitoring of Abbott’s patent filings as it struggled to compete, attempts to extend the covenant not to sue, and failure to modify its design despite weak defenses to infringement—and Dexcom’s willful infringement continues to this day.”
Dexcom, meanwhile, claimed in its brief that Abbott’s remarks and presentation during its closing argument warrant a new trial.
“During closing arguments, Abbott’s counsel displayed and inaccurately summarized materials not in evidence—namely, its own expert’s hearsay declaration discussing a prior art reference and the statements the Patent Office supposedly made about it,” Dexcom submitted. “This argument was highly prejudicial to Dexcom and, as evidenced by the jury’s follow-up questions during deliberations, it is more than reasonably probable that this presentation infected the jury’s verdict.”
Law360 reports that both sides would settle for Judge Kent A. Jordan electing to decide in their favor as well.
This case adds to other ongoing litigation between the companies, including in Europe.
A look at the patents Abbott says Dexcom infringed
The patent that the jury ruled Dexcom did in fact infringe is referred to as the 649 patent. This patent enables an automatic insertion device that quickly inserts and automatically retracts the sensor’s needle. This allows for relatively pain-free, single-handed application of the CGM. Abbott established at the trial that this inserter proves critical to consumer acceptance.
The jury hung on what’s referred to as the 216 patient. Abbott provided evidence that the G6 includes a sliding member that moves along a “second axis.” The axis, “defined by the length of the straight track,” was argued by Dexcom to not move “straight” because the axis moves. Both companies requested judgment over the infringement of that patent.
On the patent labeled 647, Dexcom argued that its G6 lacks a “locking mechanism,” which Abbott believes it contains. The 338 patent, which the court ruled Dexcom did not infringe upon, won’t be challenged by Abbott.
