Fed Circuit throws out doctors’ patent suit

The  US Court of Appeals for the Federal Circuit has thrown out a patent infringement lawsuit brought by two Illinois doctors against more than 300 hospitals.

Nazir Khan and his son Iftikhar Khan accused medical devices developers Hemosphere, CryoLife, and Merit Medical Systems, of infringing a US patent covering an arteriovenous shunt. Individual doctors and more than 300 hospitals were also named as defendants.

The US District Court for the Northern District of Illinois dismissed the case with prejudice after finding that the Khans had not properly served most of the defendants.

The Khans claimed during the district court proceedings that they had completed proper service for all defendants, arguing that “placing the waiver request in the mail is equivalent to service”.

But the district court said a request to waive service is “merely a request and that waiver by the defendants is not mandatory”.

In addition, the district court threw out the claims against Merit Medical, CryoLife, and three physicians for improper venue, as the Khans presented no evidence that they had infringed the patent in Northern Illinois or were based there.

More than 100 of the remaining defendants filed 11 separate motions to dismiss on various grounds, including insufficient or untimely service, improper venue, and lack of jurisdiction.

The district court granted the motions and dismissed the Khans’ claims against all remaining defendants due to their “insufficient and untimely attempts at service”.

The Federal Circuit has now upheld that decision, spelling the end of the Khans’ patent suit. While the two doctors “endeavoured to obtain waivers [of service] from all of the defendants, with very few exceptions, the defendants did not return signed waiver forms,” the court noted.

On appeal, the Khans argued that the defendants had a duty to return the forms signed within 30 days or show good cause for not doing so.

But the Federal Circuit said this was a “misinterpretation” of the law: “While Rule 4(d) obligates defendants ‘to avoid unnecessary expenses of serving the summons,’ it does not require defendants to waive formal service.”

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