Abiomed, Inc. v. Maquet Cardiovascular, LLC (D. Mass. 16-cv-10914).

In this patent case, Abiomed sought to redact information from the publicly-available transcripts of oral arguments from an August hearing that was conducted by videoconference.  Specifically, Abiomed sought to redact information relating to the inventor on one of the patents asserted against Abiomed, who now works as a consultant for Abiomed; the proposed royalty rates of the two parties’ damages experts; revenues of the accused Impella products; allegations relating to the absence of non-infringing alternatives; and statements of Abiomed’s expert relating to internal market surveys of the Impella.  Judge Saylor noted the presumption of public access to information relevant to the determination of the parties’ substantive rights in litigation, and that expert reports fell within thee scope of such information and were likewise subject to a presumption of disclosure.  He further noted that one of Maquet’s representatives attended the hearings, which would normally be considered a public release that would preclude sealing the information, but given that the hearing was conducted by videoconference due to COVID-19, it was possible that Abiomed was unaware that non-attorneys from Maquet were listening in, and therefore he would not deny the motion on that basis.  Judge Saylor granted the motion with respect to confidential financial information, finding the need to protect such sensitive information outweighed the presumption of access.  He also granted the motion with respect to the inventor’s role at Abiomed, as Maquet did not object.  He denied the motion, however, with respect to the discussion of non-infringing alternatives and statements about internal market surveys as not supported by Abiomed’s brief.

Judge Saylor also dealt with Abiomed’s motion for sanctions against Maquet’s technical expert.  Abiomed had asserted that the expert’s participation in the reexamination of one of the asserted patents was in violation of the protective order entered in the case and subject to civil contempt.  Judge Saylor found that the protective order’s language was not “clear, definite, and unambiguous” as required by First Circuit case law.  The protective order prohibited those who received confidential information of the other party from taking part in the “prosecution” of patents asserted in the litigation, with “prosecution” defined as including “drafting, amending, advising on, or otherwise affecting the scope of patent claims.”  The protective order went on to note that this prohibition was “not intended to… preclude counsel from participating in any post-grant proceeding… except that any individual who receives access to a producing party’s ‘Highly Confidential’ material is preclude from drafting or amending claims in a post-grant proceeding.”

The expert took part in an examiner interview and submitted a declaration in the reexamination, which ended with the claims of the subject patent being upheld without amendment.  Abiomed contended that the above-quoted initial phrase precluded this activity and that only counsel was permitted to take part in post-grant proceedings, while Maquet contended that the second phrase made clear that participation by the (non-lawyer) expert was permitted, provided that he was not involved in drafting or amending claims.  Judge Saylor indicated that he found it likely that the expert violated the protective order, but did not grant Abiomed’s motion given that the language of the protective order, which was drafted by and between the parties for approval by the court, was sufficiently ambiguous as to whether non-lawyers could participate in reexamination proceedings as to preclude a finding of contempt.