SAN MATEO, Calif., April 27 /PRNewswire/ -- BioForm Medical, Inc. ("BioForm") has responded to the August 2004 patent infringement suit by Artes Medical Inc. ("Artes"). BioForm believes the patent infringement suit by Artes is without merit, and BioForm has responded with defenses based on 1) a breach of contract by one of Artes' founders in the purported transfer of the patent to Artes, 2) the fact that the patent in dispute is not valid and is unenforceable due to false statements of inventorship, and 3) that the claims in this patent do not cover BioForm's products. BioForm has also countersued for damages and equitable relief.
In 1997, a predecessor to BioForm licensed rights under U.S. patent No. 5,344,452 (the "452 patent") from Martin Lemperle, at the time the sole named inventor on the 452 patent. This license agreement included two options, first an option to extend the field of use of the BioForm products under the patent, and second an option to acquire the patent in question prior to a transfer of the patent to a third party. BioForm's Answer and Counterclaims filed April 25, 2005, states that Martin Lemperle breached both of those provisions by refusing to negotiate on the option to extend the field of use, and by purporting to transfer the patent to Artes in 1999, in direct conflict with BioForm's option to acquire the patent prior to such transfer. Based upon these breaches by Martin Lemperle, and the induced breach by Artes, BioForm seeks a declaration that it has equitable rights to ownership of the 452 patent and that Artes has insufficient ownership of the patent to bring its patent infringement action against BioForm.
In addition to BioForm's rights to the patent under its 1997 license agreement, BioForm's filing states that the 452 patent is invalid because it was anticipated by prior art at the time of its filing and because of inaccurate statements of inventorship. BioForm seeks a ruling that the patent is unenforceable due to false declarations to the U.S. Patent and Trademark Office regarding inventorship. Although Gottfried Lemperle was clearly and repeatedly identified in numerous public statements by Artes and by himself to be "the inventor" of the technology described in the 452 patent, his son, Martin Lemperle filed the patent application and made false, certified statements to the U.S. Patent and Trademark Office that he was the sole inventor. In 2004, 14 years after the U.S. patent application was filed, Gottfried Lemperle was purportedly added as an inventor to this patent, but such correction should be ruled ineffective as a result of further misrepresentations to the U.S. Patent and Trademark Office in connection with the attempted correction. BioForm further alleges that at least one of Gottfried Lemperle's graduate students should rightly be an inventor on this patent and has never been properly named on the patent.
BioForm intends to vigorously defend against Artes' false and meritless claims, and to prosecute its counterclaims to enforce its option rights and for damages and injunctive relief.
BioForm Medical, Inc. is a privately-held medical device company developing and commercializing injectable implant products for soft and hard tissue augmentation and topical preparations for dermatological conditions. The Company is dedicated to improving patients' lives by providing high quality, innovative, safe and effective medical products for use in the plastic surgery, dermatology, urology and ENT markets. BioForm is marketing three products, Radiesse(TM), Coaptite(R) and Cutanix(R), which have an extensive record of safe clinical use in a variety of applications. Radiesse is marketed worldwide for radiographic tissue marking, vocal fold augmentation, maxillofacial augmentation, and outside of the U.S for facial soft tissue augmentation. Coaptite is sold outside of the U.S. to treat female stress urinary incontinence ("SUI") and pediatric vesicoureteral reflux ("VUR"). Cutanix, a topical treatment incorporating Quadrinone(R), is sold to dermatologists and medical spas to treat facial redness associated with conditions such as Rosacea. For more information about BioForm, please visit the Company's website at http://www.bioformmedical.com/
Contact: Adam D. Gridley Director of Corporate Development Phone: 650-286-4000
BioForm Medical, Inc.CONTACT: Adam D. Gridley, Director of Corporate Development of BioFormMedical, Inc., +1-650-286-4000
Web site: http://www.bioformmedical.com/