3— Tech removal: Aff causes crucial medical technology to be taken from the market

Some district courts have signaled a willingness to consider other aspects of the public interest, despite the seemingly small subset of factual scenarios that could traditionally invoke a valid public interest argument under historical precedent. The definition of public interest is fundamentally changing as society becomes more reliant on technology and as economies, both global and local, further develop interdependent webs. 78 76. MPT, 505 F. Supp. 2d at 420-21 ("There is a general public interest in favor of strong patent protection, except in cases where an obvious public interest such as public health and safety exists."). 77. The right to exclude is statutorily recognized under the Patent Act. 35 U.S.C. § 154(a)(1) (2006). See, e.g., WERNER Z. HIRSCH, LAW AND ECONOMICS 18 (1979) ("The right to property is the power to exclude others from or give them access to a benefit or use of the particular object."); Patricia L. Farnese, Patently Unreasonable: Reconsidering the Responsibility of Patentees in Today's Inventive Climate, 6 TUL. J. TECH. & INTELL. PROP. 1, 4 (2004) ("A patent is a property right. Most people associate property rights with ownership."); Oliver Hart & John Moore, Property Rights and the Nature of the Firm, 98 J. POL. ECON. 1119, 1121 (1990) (defining property as the "right ... to exclude others from the use of [an] asset"). 78. See Scott A. Allen, "Justifying" the Public Interest in Patent Litigation, 88 IND. L.J. 1047, 1085-86 (2013). 2015] 767 VAND. J. ENT. & TECH. L. Some post-eBay district courts have recognized that part of the responsibility inherent in their power to administer equitable relief is to identify "interests" in relation to changing social norms. For example, "the public interest factor may favor an infringer when injunctive relief will result in a socially valuable technology becoming unavailable." 79 With regard to the ITC, it will be up to alleged infringers to offer reasonable public interest arguments so that the ITC can redefine the contours of "public interest." To that end, the following three examples of successful, not directly health-related, public interest arguments before district courts could help identify some winning patterns of argumentation. Practitioners are well advised to study these cases with an eye toward how similar arguments might work at the ITC and how they might apply to different factual scenarios before the district courts. 1. Johnson & Johnson Vision Care In Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp. (JJVC), two of the largest competitors in the contact lens industry squared off against each other.80 The district court found CIBA's patent for a unique silicone hydrogel contact lens valid and infringed by JJVC. Yet, the district court denied CIBA's motion for a permanent injunction. While the court examined all of the eBay factors, as required, its decision turned primarily on public interest considerations. 8 1 In its brief, the patent holder, CIBA, focused on distinguishing the typical health-related public interest precedent. It asserted that its case fell outside of the scenario in which public interest might trump the grant of a permanent injunction, citing historical precedent that favored public interest in strong patent rights. CIBA argued that the case exclusively involved the non-life-saving technology of contact lenses, which are often worn in lieu of eyeglasses at the prerogative of a patient, contending that "[a]n injunction covering [JJVC's] Acuvue Oasys does not implicate public health" and that contact lenses are"not a medical necessity, only a convenience." 82 While deployed in an arguably untactful manner, CIBA correctly pointed out that patients could simply be refitted for a different brand of contact lens if an injunction took JJVC's popular Acuvue line of lenses off the market. And, if a patient remained unsatisfied with an alternative brand of contact, patients could wear glasses or could elect to have corrective eye surgery. 83 On the whole, CIBA's run-of-the-mill motion for a permanent injunction conveyed an air of presumptive victory-that the motion was a formality in the process of obtaining the injunctive relief that attaches with a patent holder's right to exclude. 84 JJVC, however, aggressively opposed the motion and tied the use of contact lenses back into the realm of public health. Employing a successful argument from medical device cases, it argued that patient health is affected by a doctor's option to choose from a diversity of products depending on patient anatomy.85 It also asserted that its contact lenses have special UV protection that is unmatched by the competition and "statistically equivalent to an opaque eye patch." According to JJVC, this UV protection reduces occurrence of ocular diseases like cataracts, pterygia, macular degeneration, and keratitis.8 6 Interestingly, JJVC did not have scientific proof of its medical assertions at the time. In fact, the Food and Drug Administration required JJVC's products to include a disclaimer stating that "studies ha[d] not been done to demonstrate that wearing UV-blocking contact lenses reduces the risk of developing cataracts or other disorders."87 Undaunted, JJVC also creatively argued that its Acuvue lenses are the only lenses that dry eye patients could tolerate, even stating that dry eye is a problem of "epidemic" proportions. 8 JJVC was generally 82. CIBA's Motion for a Permanent Injunction at 16-17, Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., 712 F. Supp. 2d 1285 (M.D. Fla. Oct. 14, 2009) (Nos. 3:05-cv-135- J-32TEM, 3:06-cv-301-J-32TEM), ECF No. 319. 83. Id. at 17. 84. Id. 85. B. Braun Melsungen AG v. Terumo Med. Corp., 778 F. Supp. 2d 506, 525-26 (D. Del. 2011) ("However, in the overall circumstances presented here, particularly the public interest in access to competing alternatives to safe medical devices . . . ."). 86. Opp. Brief for Johnson & Johnson Vision Care at 25, Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., 712 F. Supp. 2d 1285 (M.D. Fla. Feb. 23, 2010) (Nos. 3:05-cv135-J-32TEM, 3:06-cv-301-J-32TEM), ECF No. 347. 87. Reply Brief for CIBA Vision Corp. at 2, 17, Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., 712 F. Supp. 2d 1285 (M.D. Fla. Mar. 10, 2010) (Nos. 3:05-cv-135-J-32TEM, 3:06-cv-301-J-32TEM), ECF No. 364 ("The FDA requires contact lens companies promoting UV blocking lenses to include this disclaimer: 'Clinical studies have not been done to demonstrate that wearing UV-blocking contact lenses reduces the risk of developing cataracts or other disorders."'). 88. Opp. Brief for Johnson & Johnson Vision Care, supra note 86, at 25-26. 2015] 769 VAND. J. ENT. & TECH. L. successful in making arguments about "comfort" sound more health-related than convenience-related. It also created the appearance that an injunction would immediately force patients into a "deluge" of contact refitting sessions with optometrists, 89 while common sense suggests that such refittings would be staggered over a long period of time as different patients ran out of their supply of lenses at different intervals.90 The court ultimately found JJVC's arguments persuasive, finding that "millions of innocent contact lens wearers will suffer real adverse consequences if sale of Acuvue@Oasys is enjoined." 91 In denying the injunction, the court stated its focus was on "not just issues of comfort or cosmetics," but also on the patients' "proper vision and eye care." The court failed, however, to specify any particular vision or eye care issues.92 In reality, the court focused mostly on the speculated "significant disruption, confusion and cost" for patients abruptly losing access to JJVC lenses. 93 Indeed, the court admitted that contacts were not the sort of "potentially life-saving technologies" usually at issue in public interest arguments. The "practical and economic issues," however, warranted a denial. 94 Taking a somewhat bold leap from precedent, the court's reasoning followed a convenience and economic thread of argument. In medical device and other health-related fields of technology, accused infringers may have leeway to bootstrap tangentially related public interest arguments to core public health rationales. Building from precedents such as JJVC, litigants can use subsidiary convenience and economic arguments to ultimately tip the scales in their favor. If nothing else, JJVC shows that opportunities to overcome seemingly sure-fire permanent injunctions might be available to litigants who understand how to push the boundaries of what constitutes public interest