Bard Peripheral Vascular, Inc. v. WL Gore

7BARD PERIPHERAL v. WL GOREThe following is written above the photomicrograph:I want to maximize the amount and rate oftissue ingrowth into Gore-Tex vascular prosthetics.Two qualities are necessary. 1. Uniform“poker chip” structure and 2. a minimal“skin” at both the O.D. and I.D. surfaces.Tissue has invaded Gore-Tex where thenodes are approx. 10-30 microns thick andwith most separations between nodes at about50-100 microns. Photo # 1. Other structureshaving approximately 5-10 micron node dimensionsand spaces from about 5-30 microndo not appear to allow ingrowth-Photo # 2.Cooper I, 154 F.3d at 1325. This court referred to Kelly’sphotomicrographs showing tissue ingrowth and internodalseparation, yet Dr. Goldfarb, before the jury, accusedCooper of stealing Goldfarb’s photomicrographsshowing tissue ingrowth and internodal separation. Bythe time of trial, Cooper had died, leaving Dr. Goldfarbuncontradicted.Dr. Goldfarb had told the PTO that it was “wellknown in 1972 and before” that for tissue ingrowth in avascular graft, the internodal distance must be “at leastthe size of a fibroblast or red blood cell,” that is, “in therange of 5-6 microns,” so that the cells can infiltrate theePTFE pores. Goldfarb Decl., April 26, 1984 at 4-6; PX116.9772, Bard v. Gore, No. CV 03-0597-PHX-MHM. Thisis the internodal distance that all of the investigators whopreceded Goldfarb had observed to characterize the effectiveGore-Tex graft materials. Yet at the infringementtrial the jury was told that it was Goldfarb who discoveredthat Gore-Tex ePTFE had these properties andperformance.