C.r. Bard, Inc., Bard Peripheral Vascular, Inc. v. Angiodynamics, Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
C.R. BARD, INC., BARD PERIPHERAL VASCULAR,
INC.,
Plaintiffs-Appellants
v.
ANGIODYNAMICS, INC.,
Defendant-Appellee
______________________
2023-2056
______________________
Appeal from the United States District Court for the
District of Delaware in No. 1:15-cv-00218-JFB-SRF, Senior
Judge Joseph F. Bataillon.
______________________
Decided: December 15, 2025
______________________
D EANNE MAYNARD, Morrison & Foerster LLP, Wash-
ington, DC, argued for plaintiffs-appellants. Also repre-
sented by S ETH W. LLOYD, BRIAN ROBERT MATSUI; JOEL F.
W ACKS, San Francisco, CA; STEVEN CHERNY, Quinn Eman-
uel Urquhart & Sullivan, LLP, Boston, MA; M ATTHEW A.
TRAUPMAN, New York, NY.
D ANIELLE VINCENTI TULLY, Cadwalader, Wickersham
& Taft LLP, New York, NY, argued for defendant-appellee.
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C .R . BARD , INC . v. ANGIODYNAMICS, INC . 2
Also represented by JOHN T. AUGELLI, D AVID COLE ,
M ICHAEL G LENN, JOHN M OEHRINGER, M ICHAEL BRIAN
POWELL.
______________________
Before LOURIE , REYNA , and CHEN, Circuit Judges.
PER CURIAM.
This case comes back to us after a retrial in the U.S.
District Court for the District of Delaware in which a jury
found that AngioDynamics, Inc. (“AngioDynamics”) will-
fully infringed asserted claims of Bard Peripheral Vascu-
lar, Inc.’s (“Bard’s”) U.S. Patents 8,475,417 (“the ’417
patent”), 8,545,460 (“the ’460 patent”), and 8,805,478 (“the
’478 patent”), and that the asserted claims were not inva-
lid. Our prior decision had determined that the district
court earlier had erred in determining that the asserted
claims of those patents were ineligible for patent as being
solely directed to printed matter. C R Bard Inc. v. An-
gioDynamics, Inc., 979 F.3d 1372, 1384 (Fed. Cir. 2020). It
left open the issue of anticipation, determining that there
was a factual dispute and vacating the district court’s grant
of judgment as a matter of law (“JMOL”) that the asserted
claims were anticipated. Id. at 1384–85. But the district
court on remand did not address our opinion apart from
providing cursory background information, and simply
granted AngioDynamics’ post-trial motion for JMOL that
the asserted claims were invalid as directed to patent-inel-
igible subject matter, indefinite, and anticipated. CR Bard
Inc. v. AngioDynamics, Inc., 675 F. Supp. 3d 462, 467–68
(D. Del. 2023) (“Decision”). Because we conclude that the
district court did not err in granting JMOL on the ground
of anticipation, we affirm.
BACKGROUND
As this case has been here before, familiarity with the
facts and history will be presumed and we will address only
the issues decided and argued after remand.
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C .R . BARD , INC . v. ANGIODYNAMICS, INC . 3
Claims 1 and 5 of the ’417 patent are representative for
our analysis:
1. An assembly for identifying a power injectable
vascular access port, comprising:
a vascular access port comprising a body defining a
cavity, a septum, and an outlet in communication
with the cavity;
a first identifiable feature incorporated into the ac-
cess port perceivable following subcutaneous im-
plantation of the access port, the first feature
identifying the access port as suitable for flowing
fluid at a fluid flow rate of at least 1 milliliter per
second through the access port;
a second identifiable feature incorporated into the
access port perceivable following subcutaneous im-
plantation of the access port, the second feature
identifying the access port as suitable for accommo-
dating a pressure within the cavity of at least 35 psi,
wherein one of the first and second features is a ra-
diographic marker perceivable via x-ray; and
a third identifiable feature separated from the sub-
cutaneously implanted access port, the third fea-
ture confirming that the implanted access port is
both suitable for flowing fluid at a rate of at least 1
milliliter per second through the access port and for
accommodating a pressure within the cavity of at
least 35 psi.
5. The assembly according to claim 1, wherein the
radiographic marker is one or more radiographic
letters.
’417 patent col. 30 l. 51–col. 31 l. 6, col. 31 ll. 16–17 (em-
phases added). In relevant part, the asserted claim of the
’478 patent recites a method of using power injectable ac-
cess ports, including the step of “identifying [an] indicating
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C .R . BARD , INC . v. ANGIODYNAMICS, INC . 4
radiographic feature on [an] x-ray.” See ’478 patent, col. 30
l. 58–col. 31 l. 4.
D ISCUSSION
Bard appeals the district court’s grant of JMOL on in-
eligibility, indefiniteness, and anticipation. Bard also ar-
gues that the jury’s verdict of willfulness should be
reinstated, that the district court erred in alternatively
granting a new trial, and that the case should be reas-
signed on remand. Because we determine that the district
court did not err in granting JMOL on anticipation, we
need not reach the other grounds on which the district
court invalidated the claims.
I
We review a district court’s grant of JMOL according
to the law of the regional circuit. C R Bard, 979 F.3d at
1378. The Third Circuit reviews a grant of JMOL de novo.
Id. JMOL is appropriate here if “a reasonable jury would
not have a legally sufficient evidentiary basis to find for
[Bard] on [anticipation].” Id. (citing FED. R. CIV . P.
50(a)(1)). Whether a claim or limitation is directed to
printed matter, and therefore patent ineligible under 35
U.S.C. § 101, Praxair Distrib. v. Mallinckrodt Hosp. Prods.
IP, 890 F.3d 1024, 1032 (Fed. Cir. 2018), is a question of
law reviewed de novo, Berkheimer v. HP Inc., 881 F.3d
1360, 1365 (Fed. Cir. 2018). “Anticipation is a question of
fact that is reviewed for substantial evidence when tried to
a jury.” Voda v. Cordis Corp., 536 F.3d 1311, 1322 (Fed.
Cir. 2008). Substantial evidence “means such relevant ev-
idence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. of N.Y. v. Nat’l
Lab. Rels. Bd., 305 U.S. 197, 229 (1938).
At trial, AngioDynamics presented evidence that three
prior art ports anticipate the asserted claims: Bard’s “Adult
Titanium Port” (“ATP”), AngioDynamics’ “Vortex,” and a
third party’s “Port-A-Cath.”
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C .R . BARD , INC . v. ANGIODYNAMICS, INC . 5
Bard challenges the district court’s conclusions that (1)
the jury had no basis to find that the three prior art ports
lacked the claimed “identifiable feature[s]” and “radio-
graphic marker[s]”; (2) the claimed “radiographic letters”
are printed matter not entitled to patentable weight; and
(3) the jury had no basis to find that the three prior art
ports are not power injectable. We address each in turn.
A
The district court correctly determined that the
claimed “identifiable feature[s]” and “radiographic marker”
require nothing more than a radiographically discernible
feature, and further that “radiographic letters” are printed
matter not entitled to patentable weight, and therefore
cannot be used to distinguish the prior art. See Decision,
675 F. Supp. 3d at 482–83.
As we have already explained, “the content of the infor-
mation conveyed by the claimed markers . . . is printed
matter not entitled to patentable weight.” C R Bard, 979
F.3d at 1382. The claimed “identifiable feature[s],”
wherein one feature is a “radiographic marker,” were con-
strued as “perceivable attributes that identify an access
port as being structured for power injection.” J.A. 313 (em-
phasis added). That is the exact informational content that
we have held is not entitled to patentable weight. See C R
Bard, 979 F.3d at 1382 (“[W]e hold that the content of the
information conveyed by the claimed markers—i.e. that
the claimed access ports are suitable for injection at the
claimed pressure and flow rate—is printed matter not en-
titled to patentable weight.”). Similarly, the step of “iden-
tifying [an] indicating radiographic feature on [an] x-ray”
in the asserted method claim merely requires identifying a
radiographically discernible feature on an x-ray, Decision,
675 F. Supp. 3d at 485, and any requirement that the fea-
ture convey information about the port is merely a mental
step to recognize printed matter, which is also not entitled
to patentable weight, see Praxair, 890 F.3d at 1033
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C .R . BARD , INC . v. ANGIODYNAMICS, INC . 6
(“Because claim limitations directed to mental steps may
attempt to capture informational content, they may be con-
sidered printed matter lacking patentable weight.”).
In our prior opinion, we explained that “the focus of the
claimed advance is not solely on the content of the infor-
mation conveyed, but also on the means by which that in-
formation is conveyed.” C R Bard, 979 F.3d at 1384. In
particular, “the radiographic marker in the claimed inven-
tion” “allows the implanted device to be readily and reliably
identified via x-ray, as used during CT imaging.” Id. Thus,
the radiographic marker is entitled to patentable weight
only to the extent it constitutes a structural feature that is
radiographically discernible, not because of any meaning
ascribed to it.
The district court determined that AngioDynamics’ ex-
pert testimony that each of the prior art ports have a “dis-
tinctive, characteristic look” including a “distinctive shape”
that is “readily identifiable,” and Bard’s expert’s agree-
ment that port shape and basic features would be among
usual identifiable attributes via x-ray left no room for a rea-
sonable jury to reject the radiographic identifiability of the
prior art ports. Decision, 675 F. Supp. 3d at 483–84.
The district court did not err in these conclusions. At
a minimum, the uncontroverted evidence shows that ATP
has a radiographically discernible feature—its port shape.
Bard stipulated that “[t]itanium vascular access ports were
radiographically visible on X-ray before April 27, 2004.”
J.A. 5241. Bard’s expert admitted that ATP’s “port shape,”
suture holes, and other attributes are “perceivable via X-
ray.” J.A. 5965–66. Bard’s own x-ray images confirm that
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C .R . BARD , INC . v. ANGIODYNAMICS, INC . 7
the ATP port shape is identifiable via x-ray. J.A. 25788–
89.1
Bard’s contrary evidence does not create a genuine dis-
pute of material fact. Bard’s expert testified that he could
not “conclude anything about the port,” J.A. 5925, and
could not “see any of the etching,” J.A. 5920–21. But “etch-
ing” is not claimed, and the inability to “conclude anything
about the port” goes to the informational meaning allegedly
conveyed by the feature, which implicates printed matter
not entitled to patentable weight. Bard’s expert’s assertion
that he could not see radiographically identifiable features
on ATP, J.A. 5925, is conclusory and does not undermine
his admission that its shape and other features are perceiv-
able via x-ray, J.A. 5965–66. Bard improperly relies on tes-
timony and documents relating to identification for
functionality, which is printed matter not entitled to pa-
tentable weight. See J.A. 4609–14; J.A. 27196–97.2
1 Even assuming arguendo that the claims require
the radiographic feature to be capable of conveying infor-
mation, ATP would still satisfy that requirement. An-
gioDynamics’ expert testified about the “readily
identifiable” radiographic features visible on ATP, includ-
ing the “characteristic shape, the so-called ‘Aunt Minnie’
shape” in which “once I’m told what they are, I know what
they are.” J.A. 5760–62; J.A. 5785.
2 Assuming arguendo that the claim requires a port
shape that is sufficiently distinctive to be capable of con-
veying identifying information, Bard’s evidence that the
subsequently developed PowerPort needed to be “uniquely
discernible from other ports,” J.A. 4609–14, does not refute
that ATP possessed a distinctive port shape at the relevant
time—i.e., before PowerPort entered the market and before
the priority date of the asserted patents.
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C .R . BARD , INC . v. ANGIODYNAMICS, INC . 8
Bard argues that we have already ruled that there was
a dispute of material fact on whether “the claim require-
ment of a radiographic marker . . . was met by prior art
ports,” thus foreclosing the district court’s grant of JMOL.
Opening Br. 39–42. That argument ignores the full trial
record. The complete evidentiary record—including Bard’s
own stipulations, expert admissions, and x-ray exhibits—
establishes that ATP’s port shape is a radiographically
identifiable feature as a matter of law, leaving no genuine
dispute for the jury.
Further, the district court also determined that the
claimed “radiographic letter[]” is printed matter, reasoning
that “[a] letter, after all, intrinsically conveys its typo-
graphical meaning, and Bard has pointed to no technical
hurdle traversed by the asserted claims in making the ra-
diographic marker a letter as opposed to any other indicia.”
Decision, 675 F. Supp. 3d at 483.
The district court did not err in reaching that conclu-
sion. The letter aspect of the claimed radiographic letter is
printed matter claimed for its communicative content and
is not functionally related to the port. Similar to In re
Marco Guldenaar Holding B.V., 911 F.3d 1157, 1161 (Fed.
Cir. 2018), where we determined that markings on a die
are printed matter not afforded patentable weight because
“[e]ach die’s marking or lack of marking communicates in-
formation to participants indicating whether the player
has won or lost a wager” and “are not functionally related
to the substrate of the dice,” the claimed radiographic letter
simply communicates information to a user indicating the
port is power injectable and “do[es] not cause the [port] it-
self to become a manufacture with new functionality,” see
id.
Accordingly, the district court did not err in concluding
that the “identifiable feature[s]” and “radiographic
marker” require nothing more than a radiographically
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C .R . BARD , INC . v. ANGIODYNAMICS, INC . 9
discernible feature, and further that “radiographic letters”
are printed matter not entitled to patentable weight.
B
With the patent-ineligible printed matter not able to
distinguish the prior art, Bard is left with its argument
that the jury had substantial evidence to support its find-
ing that the prior art ports were not structured for power
injection, and therefore that the district court erred in
granting JMOL.
The district court determined that Bard’s expert ad-
mission that “at least some of [Bard’s ATP] ports were
structurally capable of the claimed flow conditions” left no
room for the jury to reject AngioDynamics’ contention that
ATP was power injectable, and that “objective, documen-
tary evidence confirmed [that] doctors” had used the prior
art ports at the claimed flow rate of 1 milliliter per second.
Decision, 675 F. Supp. 3d at 481, 485. The district court
pointed to similar evidence for the two other prior art ports:
a study showing achieved power injection in Port-A-Cath
and a lab notebook showing the same for Vortex. Id. at
481–82.
The district court did not err in these conclusions. At
trial, Bard’s named inventor of the asserted patents admit-
ted that some ATPs would “pass” power injection testing
without failure. J.A. 4705–06. Another named inventor
testified that ATP was “for sure” “capable of withstanding
the pressures of power injection.” J.A. 5624. And AngioDy-
namics presented testimony from its expert that ATP “is
structured for power injection.” See, e.g., J.A. 5774. Be-
cause the undisputed evidence at trial demonstrated that
ATP was capable of power injection, the jury had no rea-
sonable basis to find that the prior art ports were not struc-
tured for power injection.
Bard argues that the jury had substantial evidence to
find that ATP was not “structured for power injection”
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C .R . BARD , INC . v. ANGIODYNAMICS, INC . 10
because it presented evidence that (1) it modified ATP to
create the PowerPort and (2) PowerPort was the first port
to receive FDA approval for power injection. See Opening
Br. 51–52. But Bard’s first argument fails because Bard’s
inventor testified that ATP could sometimes withstand
power injection, see J.A. 4505–09, and a prior art product
that sometimes embodies a claimed invention can still an-
ticipate the claimed invention, see Hewlett-Packard Co. v.
Mustek Sys., 340 F.3d 1314, 1326 (Fed. Cir. 2003). Bard’s
second argument also fails because there is no FDA ap-
proval requirement in the claim language or construction,
and therefore a lack of FDA approval for power injection
use does not mean that the prior art ports were not struc-
tured for power injection.
Bard presents substantially similar arguments for the
other two prior art ports. See Opening Br. 47, 48–49. Bard
similarly points to no evidence proffered at trial showing
that those ports were not structured for power injection.
Bard points only to evidence about the safety of power in-
jection, submissions made to the FDA, and instances when
the prior art ports were not used for power injection. See,
e.g., J.A. 5498–500, 5846. None of this disproves AngioDy-
namics’ evidence that the prior art ports were structurally
suitable for power injection. See J.A. 5416–19, 28345.
Accordingly, the district court did not err in concluding
that the jury had no reasonable basis to find that the prior
art ports were not structured for power injection.
For the foregoing reasons, the district court properly
determined that the asserted claims were anticipated as a
matter of law.
II
Because we affirm the district court’s determination
that the patents are invalid as anticipated, we need not
reach Bard’s arguments as to willful infringement, a new
trial, and reassignment. See Marrin v. Griffin, 599 F.3d
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C .R . BARD , INC . v. ANGIODYNAMICS, INC . 11
1290, 1295 (Fed. Cir. 2010) (“There can be no infringe-
ment of claims deemed to be invalid.”); Zodiac Pool Care,
Inc. v. Hoffinger Indus., 206 F.3d 1408, 1417 (Fed. Cir.
2000) (“Because we affirm the district court’s grant of
JMOL, it is not necessary to address the propriety of the
conditional award of a new trial.”).
CONCLUSION
We have considered Bard’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm the district court’s grant of JMOL as to anticipation.
AFFIRMED
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