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Fed. Circuit: Consultant's Pre-Agreement Work Falls Outside Assignment Provision
On Feb. 5, 2016, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit issued a unanimous decision in TriReme Med., LLC. v. AngioScore, Inc., 2015-1504 (Fed. Cir. 2016), holding that AngioScore's consulting agreement had failed to assign inventive contributions made by a consultant before the effective date of the agreement. As a result, AngioScore failed to stop the consultant from licensing his patents on the inventions to a competitor, TriReme. While the panel remanded the case for further review of an alternative AngioScore argument, the decision highlights the need for attentive drafting of agreements with new employees and contractors, especially if they may have engaged in relevant inventive activity before the start of the employment or contractor relationship.
Background
AngioScore is a developer and manufacturer of angioplasty balloon catheters designed to open arterial blockages called AngioSculpt, and the three AngioScore patents at the heart of this dispute all relate to this type of device. AngioScore entered into a consulting agreement in 2003 with Dr. Chaim Lotan in connection with its development of AngioSculpt. The consulting agreement had two provisions addressing ownership of inventions: Section 9(a), on inventions before the agreement's effective date; and Section 9(b), on inventions during the term of the agreement.
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