161 F.3d 1380 | Fed. Cir. | 1998
Concurrence Opinion
concurs in a separate opinion.
The mandate of the court will issue on December 14,1998.
ON SUGGESTION FOR REHEARING IN BANC
GAJARSA, Circuit Judge, concurring in the Order declining the suggestion for rehearing in banc, in which Circuit Judge CLEVENGER joins.
If fundamental issues at the intersection of patent law and antitrust law were being decided, I would dissent from the court’s decision to deny an in banc rehearing. However, those issues are not before us. In this case, the patentee is accused of improperly redesigning a patented product, albeit within the proper scope of the claims, in order to pi-event its competition from entering the market for the now unpatented product
Given these facts, the patent bar may, at first glance, be alarmed that the majority opinion opens the floodgates with respect to a new antitrust cause of action. However, it is important for the bar to note that the only argument Bard made on appeal regarding the antitrust violation was directed to the sufficiency of the evidence on this issue. Bard did not argue to this court that modification of a patented product within the scope of the claims by a patentee cannot, as a matter of law, constitute an antitrust violation. Nor did Bard challenge the jury instructions. See C.R. Bard, 157 F.3d at 1382 (“Because Bard did not challenge the court’s instructions ... the legal sufficiency of the
Consequently, this case does not establish or endorse a new antitrust theory. The majority opinion turns solely on Bard’s argument regarding the sufficiency of the evidence and its failure to challenge the propriety of the jury instructions. The question of whether or not a cause of action premised upon the antitrust laws exists when a patentee redesigns a patented product within the scope of the patent claims, awaits another day.
. The patent covering the needles was held invalid by the panel majority on the basis of 35 U.S.C. § 102(b).
Lead Opinion
ORDER
A combined petition for rehearing and suggestion for rehearing in banc having been filed by C.R. Bard, Inc., and a response thereto having been invited by the court and filed by M3 Systems, Inc., and the petition for rehearing having been referred to the panel that heard the appeal, and thereafter the suggestion for rehearing in banc and response having been referred to the circuit judges authorized to request a poll whether to rehear the appeal in bane, and a poll having been requested, taken, and failed,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the same hereby is DENIED and it is further
ORDERED that the suggestion for rehearing in banc be, and the same hereby is, DECLINED.