Bard Peripheral Vascular, Inc. v. WL Gore

19BARD PERIPHERAL v. WL GOREthis court has explained previously that “a person will notbe a co-inventor if he or she does no more than explain tothe real inventors concepts that are well known and thecurrent state of the art.” Fina Oil & Chem. Co. v Ewen,123 F.3d 1466, 1473 (Fed. Cir. 1997) (internal citationsomitted). “[T]o be a joint inventor, an individual mustmake a contribution to the conception of the claimedinvention that is not insignificant in quality, when thatcontribution is measured against the dimension of the fullinvention.” Id. In this case, Gore did know about ePTFEbefore Goldfarb, but the potential use of ePTFE as avascular graft was not a new concept and any suggestionby Cooper to use the material was insignificant.Rather than the idea of using ePTFE as a graft, theclaimed invention in this case is a vascular prosthesismade from ePTFE having a very specific range of distancesbetween nodes, which are connected by fibrils. See,e.g., ’135 patent col.12 ll.1–6; Cooper II, 240 F.3d at 1381.Before Goldfarb made his invention, other doctors hadtried to use ePTFE as a small bore vascular graft, butnone understood why apparently identical grafts wouldoften perform differently when implanted. [J.A. 35044,41829, 46193, 49746]. Goldfarb was the first person todiscover that a specific internodal distance was the determiningfactor in graft success and reduce that knowledgeto practice. Cooper II, 240 F.3d at 1380.The dissent points to letters detailing the results ofthe experiments by Drs. Sharp and Kelly, Dissent at 5–7,which show some patent ePTFE grafts, as support for theconclusion that Goldfarb could not be the sole inventor. 8However, this court previously considered those letters8 The dissent also cites to an article by Volder. Dissentat 5. This reference is dealt with in subsection C ofthe Discussion.