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Major Changes Sweep Patent Law

Limbach |
Two recent developments in patent law promise to dramatically change the way medical device companies procure, enforce, and defend their patent rights in the future. On August 20, the U.S. Court of Appeals for the Federal Circuit reversed a 24-year-old precedent regarding what constitutes willful patent infringement, and redefined how far the attorney-client privilege extends in cases involving patent opinions. The next day, in a separate development, the United States Patent and Trademark Office published new rules governing the number of continuing applications and claims a patent applicant may file.
In this article, Douglas C. Limbach, an attorney at Shay Law Group LLP (San Mateo, CA), provides background on these recent developments—and what they could mean for medical device manufacturers and their patent portfolios. [More]
CMS’s Proposed Clinical Research Policy Draws Strong Industry Reaction

Leahey |
Proposed revisions to the clinical research policy of the Centers for Medicare and Medicaid Services (CMS; Baltimore) have elicited a strong reaction across the medical industry. While some industry members question CMS’s authority to issue such revisions, others are cautiously evaluating the implications of a new self-certification process for clinical trials.
In claiming that the proposed policy exceeds CMS’s authority, the Medical Device Manufacturers Association (MDMA; Washington, DC) has called on the agency to withdraw the proposed revisions. Mark Leahey, MDMA executive director, said, “CMS has long recognized that its authority to issue national coverage decisions requires that these policies apply to specific items and services. This proposed decision would address coverage of an extraordinarily broad range of items and services . . . and any effort to revise coverage for such a vast assortment of items and services would exceed the scope of a national coverage decision and must be pursued through rulemaking.” [More]
Bausch & Lomb Marks Medtech’s Latest Move into the Private Sector

Gunderson |
Diversified eye-care company Bausch & Lomb Inc. (Rochester, NY) is set to go private. The transaction, which follows on the heels of the $10.9 billion acquisition of orthopedics manufacturer Biomet Inc. (Warsaw, IN) by a consortium of private equity investors, has prompted discussion among industry observers as to whether the medtech industry can expect to see more publicly traded players going private.
Thomas Gunderson, a managing director and senior medtech analyst with Piper Jaffray & Co. (Minneapolis), says the idea of more medtech companies going private is intriguing. “There’s an excess of private equity funds and a paucity of good opportunities,” he says. “Medical technology is increasingly recognized as one of those sector opportunities.”
Gunderson says there are a number of incentives for companies going private. “By going private, many medtech companies could realize significant cost savings while having a far greater ability to focus on long-term goals and objectives—rather than worrying about the next quarterly report,” he says. Gunderson estimates that many companies could realize savings of 20–30% by going private. [More]
Medical Product Centers Planned for New York City, Cleveland
Organizations in Cleveland and New York City have emerged with separate yet similar plans to construct massive exhibition and conference complexes targeted specifically at the medical manufacturing industry. Both projects—which have yet to break ground—call for hundreds of thousands of square feet to be dedicated to permanent medical device and equipment showcases, as well as space for medical education activities.
Although both projects have been in planning stages for years—and are still several years out from their anticipated completions—they’ve each received their fair share of attention in recent weeks due to the achievement of significant milestones. Parties on both sides, although acknowledging that the significant size of the medical product market provides room for competition, tout their respective locations as being key to their anticipated success. [More]
IP Watch: Medtronic to Acquire Biophan MRI Safety Technology

Weiner |
Biophan Technologies Inc. (Pittsford, NY) and Medtronic Inc. (Minneapolis) have entered into an agreement under which Medtronic will acquire Biophan’s magnetic resonance imaging (MRI) safety patents for $11 million in cash. Under the terms of the agreement, Biophan will transfer to Medtronic its MRI safety patent portfolio, which includes technologies designed to make certain medical devices, such as pacemakers, safe for use with MRI. The transaction, announced earlier this month, is expected to close within 60 days.
“Our technology has the potential to solve the problems that have prevented many people with pacemakers from having an MRI,” said Michael Weiner, president of Biophan. “We believe Medtronic has the experience and resources to bring our technology to market.”
Read more about this deal and other industry patent news in this month’s edition of “IP Watch." [More]
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| IN THIS ISSUE |
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Major Changes Sweep Patent Law
CMS’s Proposed Clinical Research Policy Draws Strong Industry Reaction
Bausch & Lomb Marks Medtech’s Latest Move into the Private Sector
Medical Product Centers Planned for New York City, Cleveland
IP Watch: Medtronic to Acquire Biophan MRI Safety Technology
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On August 23, the board of directors of Medtronic Inc. (Minneapolis) elected William A. Hawkins to the position of president and chief executive officer, and Michael F. DeMane to the position of chief operating officer. Former CEO Arthur D. Collins Jr. remains as chairman of the board.
Boston Scientific Corp. (Natick, MA) plans to dissolve its 2004 merger with Advanced Bionics Corp. (Sylmar, CA). Boston Scientific plans to sell the auditory business and drug pump development program to principals of Advanced Bionics for an estimated $1.15 billion. Several days after announcing the agreement, Boston Scientific reported its intention to explore the sale of its cardiac surgery and vascular surgery businesses as well.
Aspen Surgical Products Inc. (Caledonia, MI) has acquired Colby Manufacturing Corp. (Tullytown, PA), a manufacturer of disposable infection control products. Aspen, a portfolio company of RoundTable Healthcare Partners (Lake Forest, IL), has completed three other acquisitions during 2007. Earlier this year, it acquired Ultracell Medical Technologies Inc., Precision Dynamics Corp.’s skin marker product line, and Entaco Ltd.’s surgical needle business.
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| CALENDAR |
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September 11: Sourcing Medical Devices in Asia, Web seminar.
September 17–18: MedTech 07: Quality Product Development in a Regulated Environment, Skaneateles Falls, NY.
September 19: Strategies for Success in China, Japan, and India, Web seminar.
September 19–20: MEDTEC Ireland, Galway, Ireland.
September 23–26 Regulatory Affairs Professionals Society Annual Conference & Exhibition, Boston.
September 24–27: National Manufacturing Week, Rosemont, IL.
October 3–4: BIOMEDevice Forum, San Jose.
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MX: Issues Update is a monthly e-supplement prepared by the editors of MX: Business Strategies for Medical Technology Executives and sent to you as a benefit of your online registration with Canon Communications. To become a regular subscriber to this monthly medtech business update, click here.
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