PrintJurors negated a patent on a remote critical health care system from one of Cerner Corp. 's competitors, finding in favor of the prominent North Kansas City company this week in federal court.
The verdict annulled a patent from Baltimore-based Visicu Inc. that had undergone two re-examinations from the U.S. Patent and Trademark Office.
"At least with respect to the patents, they no longer will be a cloud over Cerner's operations," said Cerner's attorney, B. Trent Webb, of Shook, Hardy & Bacon.
Visicu in 1999 applied for a patent to a remote system that enabled hospital intensive care specialists to monitor a number of patients at varied geographic locations from a single command center. The system allows specialists to give instructions to patients and physicians regarding their care without having to leave the command center. Such systems have proved particularly useful at small and rural hospitals, where ICU specialists aren't always available.
Visicu received its patent in 2004, the same year one of its main competitors, Cerner, developed and sold similar systems.
Cerner, which employs more than 3,000 physicians, scientists, engineers and other associates in Kansas City, describes itself as a leading supplier of health care technology.
Cerner in 2004 filed a lawsuit in U.S. District Court Western District of Missouri in Kansas City, alleging that Visicu sent letters to Cerner board members, clients and prospective clients, threatening patent infringement litigation.
"Remedies available to patent owners include injunctive relief as well as monetary damages for lost profits, price erosion, convoyed sales ... " Jon Roberts, of Roberts Abokhair & Mardula in Reston, Va., wrote to Cerner officials in an Oct. 12, 2004, letter on Visicu's behalf. "We strongly advise that you contact your own intellectual property counsel to obtain an opinion concerning the Visicu patent and how it relates to your own product offerings. "
In addition to trying to protect Cerner from allegations of infringement, officials at the Kansas City company also contended in the suit that the Visicu system wasn't unique and shouldn't have been patented in the first place.
"We proved in trial that concept was first used in 1977," Webb said.
Reached by phone Thursday afternoon, Visicu's attorney, Todd Samelman of Perkins Coie in Washington D.C., declined to comment.
Visicu officials didn't immediately return a phone call.
In its answer, Visicu denied the allegations and submitted a counterclaim of infringement against Cerner.
A federal jury in Kansas City on Tuesday found in favor of Cerner, invalidated Visicu's patent and cleared Cerner of all infringement allegations.
The only other company in the intensive care systems' market besides Visicu and Cerner is IMDsoft Inc. of Needham, Mass., which also is in the midst of a patent dispute with Visicu that is pending in federal court in Pennsylvania, according to Bloomberg News. Visicu is the largest maker of the systems.
A matter remains between Visicu and Cerner, however.
The two go back to federal court in Kansas City this February so Judge Gary Fenner can consider Cerner's claim of inequitable conduct against Visicu.
Cerner in its original petition accused Visicu of failing to tell U.S. patent officials about relevant prior patents and devices when it applied for the product protection. The judge separated that claim from the infringement complaints in the recent jury trial.
The case is Cerner Corp. v. Visicu Inc., 4:04-cv-1033.
