The American medical equipment manufacturer Hollister is far from happy that its competitor Coloplast has chosen to appeal a patent case to the High Court that Hollister won in the Maritime and Commercial Court in January.
"This case should have never been filed. It was filed for one reason: To delay the grant of a patent to Hollister," says Tim Murphy, Hollister’s VP of law.
The case revolves around a patent on a special type of protective sleeve which envelops a catheter to keep it free from bacteria. In December of 2016, the European patent office, EPO, said that it would grant the patent to Hollister.
Two weeks later, Coloplast sued Hollister on the grounds that the Danish company believed to have the right to co-ownership of the patent. That caused the European patent office to pause the granting of the patent, as the EPO does not grant patents that are the subject of ongoing court cases.
The case ended up in Hollister’s favour in January of this year, as the Maritime and Commercial Court stated that Coloplast “has not claimed to have contributed to the inventive concept.”
However, Coloplast has now appealed the decision to the Eastern High Court, which means that the patent grant process at the European patent office once again is stranded, and that roiled the company on the other side of the Atlantic Ocean.
"We believe that Coloplast has filed this case to delay the grant of the patent to Hollister," says Tim Murphy, adding:
"Frankly, it is absurd that Coloplast tries to tie down Hollister in these court proceedings when they don't even claim to own the actual invention envisaged by the patent. We find that this is manifestly an improper use of the court system."
"Coloplast should stop playing these games, and put its efforts into genuine innovation and fair competition instead," says Tim Murphy.
Coloplast neither confirms nor denies the allegations.
"We do not comment on ongoing court cases, but it is correct that we have chosen to appeal the case against Hollister," writes Lina Danstrup, Coloplasts chief press officer, in an e-mail, adding:
"We continue to invest in innovation and in the development of new products and will at any time defend the company's patents."
Hollister and Tim Murphy sees one clear reason as to why Coloplast would wish to delay the granting of the protective sleeve patent.
According to Tim Murphy, Coloplasts Speedicath Flex catheters that were marketed in 2016 will infringe the patent. Therefore, he believes that Coloplast will have to pull the catheter from the European market if Hollister is granted the patent.
"Speedicath Flex is on the market right now even though it should not be. Because it will infringe the patent once it is granted to Hollister," says Tim Murphy.
Hollister estimates that the delay of the patent due to the case in the Maritime and Commercial Court and the appeal case in the High Court will cost the company at least 58 million dollars (350 million Danish kroner) in lost earnings that instead will be obtained by Coloplast.
In Coloplast’s latest annual report, it is stated that Speedicath Flex especially added to the growth in Coloplasts continence-division in Europe – the same place where Hollisters patent will be applicable if it is granted.
"Under Danish law, parties have the right to file these actions. But when these actions are filed on baseless claims, then one has to wonder why it was done. If it is done solely to cause the EPO under their administrative rules to issue a stay in granting a patent, then that’s just wrong. That’s not a fair use of the legal system," says Tim Murphy.
"Competitors should fight things out in the marketplace ethically and appropriately. Competitors should not fight through devious use of the judicial system," adds Hollister’s VP of law.
According to Tim Murphy, two of Hollister’s Vapro catheters on the market today use the technology that the patent involves.
Coloplasts Speedicath Flex catheter was nominated for the Danish Design Award in 2017 but according to the American competitor, that product exploits one of Hollister’s inventions.