May 1, 2008 - Baxter International has filed a new lawsuit against Fresenius Medical Care for violating Baxter additional patents in its design of the 2008K hemodialysis machine. Article from Chicago Daily Herald.

210-page pdf file of suit filed April 28, 2008 in U.S. District Court for the Northern District of Illinois, Eastern Division.

April 8, 2008 - The stock market paid little attention to the patent lawsuit news. At the closing of the NYSE on Monday, April 7th, the FMC stock was down 12 cents at $51.64 on light volume. Baxter stock was up 55 cents to $60.44 on average volume.

April 7, 2008 - Fresenius Medical Care will appeal against a U.S. court ruling that banned the German company from making, using or selling a key dialysis machine in the United States, FMC said on Monday. Article from Reuters.

Statement from Fresenius Medical Care.


April 4, 2008 - Fresenius Medical Care has been banned from making, using or selling the 2008K hemodialysis machine in the United States after losing a patent case to Baxter International. Press release from Baxter's law firm Bell, Boyd & Lloyd. Article from Reuters.

The Order from the U.S. District Court for the Northern District of California requires that Fresenius stop making, using or selling the 2008K hemodialysis machine effective January 1, 2009. Judge Saundra B. Armstrong also imposed a 10% royalty on the sales price of each infringing machines sold from now until January 1, 2009 and further imposed a 7% royalty on all disposable products used with the infringing 2008K hemodialysis machines. The 2008K is, according to Fresenius, its "cornerstone product" and is the best selling hemodialysis machine in the marketplace, with over 90 percent market share.

Background history:

On April 4, 2003, FMCH filed a suit in the U.S. District Court for the Northern District of California, Fresenius USA, Inc., et al., v. Baxter International Inc., et al., Case No. C03-1431, seeking a declaratory judgment that FMCH does not infringe on patents held by Baxter International Inc. and its subsidiaries and affiliates ("Baxter"), that the patents are invalid, and that Baxter is without right or authority to threaten or maintain suit against FMCH for alleged infringement of Baxter's patents. In general, the alleged patents concern touch screens, conductivity alarms, power failure data storage, and balance chambers for hemodialysis machines. Baxter has filed counterclaims against FMCH seeking monetary damages and injuctive relief, and alleging that FMCH willfully infringed on Baxter's patents. (Taken from SEC Form 6-K report by FMC, May 2005).

In 2006, Fresenius declared victory in its patent suit against Baxter concerning the 2008K (July 2006 press release via IPFrontline).

An Oakland, California jury agreed with Fresenius Medical Care that the company did not infringe any valid claims of four Baxter International's patents at issue by returning a complete verdict for the defense. Baxter International was seeking $87 million in damages from Fresenius for patent infringement associated with the "Fresenius 2008K" hemodialysis machine and an injunction barring Fresenius from continued selling of the machine.

In February 2007, Baxter's motion to set aside the jury's verdict was granted and a new trial was ordered. In June 2007, Fresenius's motion to stay was denied.

On October 27, 2007, the jury in the retrial found FMCH liable to Baxter for damages of US$14.3 million.

On April 4, 2008, the trial court denied Baxter’s motion to overturn the second jury’s $14.3 million damage award and order a second new trial. Nevertheless, the Court entered orders establishing royalties of 10% on all sales of 2008K hemodialysis machines and 7% on sales of related disposables beginning November 7, 2007, and deferred enjoining sales of 2008K machines until after January 1, 2009.

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