03/23/2014

Hemphill v. Johnson & Johnson: Dismissal and Anti-filing Sanctions Upheld for Assertion of Long Expired Patent


Category: Civil Procedure   
 
 
 
By: Samuel Dillon, Contributor  
 
TitleHemphill v. Johnson & Johnson, No. 2013-1503 (Fed. Cir. Jan. 14, 2014) (non-precedential).
IssuesAllegra Hemphill appeals from two decisions of the United States District Court for the District of Columbia. [1] The district court denied Hemphill’s Motion for Relief from Judgment pursuant to Rule 60(b), in which she sought to have the court set aside its January 2013 order dismissing Hemphill’s complaint for failure to state a claim. [2] The district court also granted defendant Johnson & Johnson’s motion for sanctions under Rule 11(b), barring Hemphill from filing future patent infringement actions against Johnson & Johnson without first obtaining leave of the district court. Hemphill at *2 (text added).
Holding[1] Hemphill has not shown any grounds for relief under Rule 60(b) [because their patent expired more than six years ago], and we affirm the district court’s decision. . . . [2] We have reviewed the record and find that the district court’s analysis complies with [the guidelines for anti-filing injunctions], particularly in light of Hemphill’s multiple unmeritorious filings against J&J and others. Hemphill at *4 (text added).
 
 
 
Procedural HistoryHemphill first filed suit against Johnson & Johnson (“J&J”) in the United States District Court for the District of Maryland in 1999, alleging that J&J’s Stayfree, Carefree, and Serenity sanitary napkins and adult incontinence products infringed claim 2 of United States Patent No. 4,557,720 (“the ’720 patent”). The Maryland District Court construed the claims and ultimately determined that the accused products did not infringe the ’720 patent, either literally or under the doctrine of equivalents. . . . The ’720 patent expired on December 10, 2002. Nonetheless, in February 2012, Hemphill again filed suit against J&J alleging that [infringement of] both independent claims of the ’720 patent. . . . The district court granted defendant’s motion to dismiss, denied plaintiff’s subsequent Rule 60(b) motion, and granted defendant’s motion for Rule 11 sanctions. Hemphill at *2-3 (text added).
 
 
 
Legal Reasoning (Newman, Dyk, Moore) (per curiam)
[1] Dismissal Proper When Recovery Window Has ClosedSince the ’720 patent had expired in 2002 and the statute precludes recovery “for any infringement committed more than six years prior to the filing of the complaint,” the district court dismissed Hemphill’s claims for untimeliness. Hemphill argued two bases for reconsideration, “(1) upon re-examination, the [’]720 Patent reissued; and (2) the District of Maryland court that first construed the [’]720 patent erred in construing the term ‘swab.’” The district court correctly ruled that “reexamination certificates do not alter the term of a patent” and . . . that Hemphill’s “continued disagreement with the claim construction of the Hemphill I court is not a basis for relief under Rule 60(b).” Hemphill at *3. (citation removed).
[2] Multiple Unmeritorious Filings Support Anti-Filing SanctionsHemphill provides no argument as to why the district court’s award of sanctions was in error. The District of Columbia Circuit has set forth guidelines for anti-filing injunctions in In re Powell, recognizing that such an injunction is “an extreme remedy.” We have reviewed the record and find that the district court’s analysis complies with Powell, particularly in light of Hemphill’s multiple unmeritorious filings against J&J and others. Id. at *4 (citation removed).
Conclusion
We affirm. Hemphill at *2.
 
 
 
 
 
 
 
 
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