Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Poly-Med, Inc. v. Novus Scientific Pte. Ltd.

United States District Court, D. South Carolina, Anderson Division

May 29, 2018

Poly-Med, Inc., Plaintiff,
v.
Novus Scientific Pte. Ltd., Novus Scientific, Inc., and Novus Scientific AB, Defendants.

          ORDER AND OPINION

         This matter is before the court pursuant to Plaintiff Poly-Med, Inc.'s Motion to Certify Order for Interlocutory Appeal and to Stay the Proceedings, or in the Alternative, to Certify a Question of State Law to the South Carolina Supreme Court and to Stay (ECF No. 257). Defendants Novus Scientific Pte. Ltd., Novus Scientific, Inc., and Novus Scientific AB (collectively “Defendants”) filed a response in opposition (ECF No. 262). For the reasons set forth below, the court DENIES Poly-Med's Motion to Certify Order for Interlocutory Appeal and to Stay the Proceedings, or in the Alternative, to Certify a Question of State Law to the South Carolina Supreme Court and to Stay (ECF No. 257).

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         Founded by Dr. Shalaby W. Shalaby in 1993, Poly-Med is a South Carolina corporation with its principal place of business at 6309 Highway 187, Anderson, South Carolina 29625. (ECF Nos. 1 at 1 ¶ 1 & 104-1 at 1 ¶ 3.) “Poly-Med designs, develops, and manufactures products and materials [out of bio-absorbable and biodegradable polymers] for use in medical, pharmaceutical and biotechnology applications.” (ECF No. 1 at 3 ¶¶ 8-9; see also ECF No. 104- 1 at 1 ¶ 3.) “Poly-Med has numerous trademarks, more than one hundred thirty patents and patent applications and has successfully licensed and manufactured technologies found in many commercially available medical applications.” (ECF No. 104-1 at 2 ¶ 5.) “In addition to creating its own products and materials, Poly-Med offers manufacturing services and consulting, analytic and research and development services to a variety of firms in the medical, pharmaceutical and biotechnology industries.” (Id. at ¶ 6.)

         In December 2004, a Swedish company called Radi Medical Systems AB (“Radi”) applied for a patent entitled “Mesh Implant for Use in Reconstruction of Soft Tissue Defects.” (ECF No. 126-2 at 2 ¶ 4.) Radi's goal was “to commercialize the invention in order to reconstruct soft tissue defects to promote optimal healing and tissue restoration.” (Id.) Even though Radi “possessed the background and know-how regarding degradable polymers, polymerization, and processing into final medical devices, ” it “did not have all of the physical equipment needed.” (Id. at 2-3 ¶ 5.)

         In early 2005, Poly-Med began negotiations with and eventually entered into a Sale of Materials and License Agreement (the “Agreement”) with Radi on or about June 8, 2005. (ECF No. 104-1 at 2 ¶ 7-4 ¶ 15.) The Agreement required Poly-Med to “develop and manufacture at least six different types of Absorbable Composite Meshes[1] for sale to and use by Radi” in hernial repair products.” (ECF No. 126-1 at 4 ¶ 2(a).) Additionally, the Agreement contained the following provisions relevant to this action:

• This license shall include the right of RADI AB to arrange for manufacture of Select Absorbable Composite Hernial Meshes used in RADI Absorbable Composite Hernial Meshes with an independent manufacturing company at any location selected by RADI AB, at prices and on terms and conditions acceptable to RADI AB; provided however that (i) in no event may RADI AB manufacture, deliver or sell, or cause the manufacture for delivery and sale, of Select Absorbable Composite Meshes except for use in RADI Products for hernial repair; . . . .

(ECF No. 126-1 at 10 ¶ 6(c).)

• RADI AB shall neither acquire nor possess any right, title or interest in or to the POLY-MED Know-How or other POLY-MED Intellectual Property with respect to the specific fiber combinations used in construction, creation, manufacture or production of Absorbable Composite Hernial Meshes. POLY-MED may file patent applications in the United States with respect to any Absorbable Constructs at any time, will have all right, title and interest in and to any patent applications with respect thereto, and will own any and all patents on any Absorbable Composite Mesh developed pursuant to this Agreement.

(Id. at 11 ¶ 7(a).)

• If POLY-MED declines, after RADI AB's written request, to prepare and file or maintain a patent application with respect to a Select Absorbable Composite Hernial Mesh in a specified territory, including but not limited to the United States, RADI AB shall have the right (but not the obligation) to prepare and file or to maintain or prosecute a patent application in such territory in POLY-MED's name and on POLY-MED's behalf, at RADI AB's sole cost and expense, and shall have authority and power in POLY-MED'S name and on POLY-MED's behalf but at RADI AB's expense, to seek, file or execute (and pay the filing fees or other costs associated with) any continuations, continuations-in-part or divisionals thereof and any patents issuing thereon together with all reissues and extensions thereof; provided however that RADI AB shall in all such cases keep POLY-MED advised of the progress of any such applications, continuations, continuations-in-part or divisionals and first consult with POLY-MED about the desired course of action.

(Id. at 13 ¶ 8.)

• This Agreement shall be governed by and construed in all matters with respect to the validity, interpretation, legal effect and construction hereof in accordance with the laws of SWEDEN, and in all matters with respect to patent or trademark enforceability, validity, and infringement, in accordance with the patent or trademark laws of the relevant country.

(Id. at 27 ¶ 28.)

• [N]either party to this Agreement may assign its rights or delegate its duties without the prior written consent of the other party, which consent shall be in its sole and absolute discretion; . . .

(Id. at 28 ¶ 30(a).)

         From the group of six proprietary, absorbable surgical meshes, Radi was to select one or two which it believed “hold the most promise for purposes of developing RADI Products . . . .” (Id. at 7 ¶ 4(a).) Radi would then “have the exclusive right to use any Select Absorbable Composite Mesh used by it in the development, manufacture, sale and distribution of its medical products . . . .” (Id. at 8 ¶ 5.) Per the terms of the Agreement, “Radi was to compensate Poly-Med for its development work, manufacturing and production of the mesh that took place exclusively in South Carolina.” (ECF No. 35-2 at 2 ¶ 11.) In February 2007, Radi selected one prototype surgical mesh which was then developed into a medical device called ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.