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April 17, 2014

Kimberly-Clark Hit with Suit and Preliminary Injunction Motion Over Surgical Drapes

On February 5, 2013, Pedigo Products, Inc. ("Pedigo") and OR Specific ("OR-S"), both based in Vancouver, Washington, filed a complaint in the Northern District of Georgia against Kimberly-Clark Worldwide, Inc., based in Irving, Texas, and Kimberly-Clark Global Sales, LLC, based in Neenah, Wisconsin (collectively, "Kimberly-Clark"), alleging that Kimberly-Clark's manufacture and sale of surgical table covers infringes U.S. Patent No. 6,019,102 ("the '102 patent").  Pedigo and OR-S followed up several days later by filing a motion for a preliminary injunction, asking the court to enjoin Kimberly-Clark from making or selling the accused products pending a final resolution on the merits.

Pedigo's "Space Station" surgical table.

According to the complaint, Pedigo is a family-owned company in the business of manufacturing stainless steel and chrome equipment for the healthcare industry and selling its products to hospitals and other healthcare providers.  Pedigo claims that one of its leading products is the "Space Station," a multi-tiered surgical table designed to hold surgical equipment in operating rooms.  To create a sterile environment for each new patient, Pedigo sells a single-use, sterile surgical drape specifically designed and manufactured to fit the Space Station table.    The '102 patent, titled "Drape for Multiple-Tiered Sterile Hospital Surface and Associate Methods," issued in 2000 to Dan Becker, who later assigned the '102 patent to OR-S, a wholly-owned Pedigo subsidiary.  Plaintiffs claim that Kimberly-Clark makes and sells a "Two-Tier, Padded, Heavy-Duty Back Table Cover" (model number 67501), which "directly infringes at least claim 27 of the '102 patent."  According to the complaint, Kimberly-Clark did not comply with OR-S's request to cease its allegedly infringing conduct, which prompted the filing of this suit.

On February 7, 2013, Pedigo and OR-S moved for a preliminary injunction.  In the motion and supporting brief, Pedigo and OR-S elaborate on their pre-suit dealings with Kimberly-Clark regarding the surgical drape product.  Plaintiffs claim that Kimberly-Clark first approached them several years ago seeking to license the '102 patent, and later offered to manufacture the surgical drape product for Plaintiffs according to their specifications.  Pedigo and OR-S rejected both offers.  The motion and brief claim that Kimberly-Clark thereafter began selling the products accused of infringement.  Pedigo and OR-S go on to argue that they are entitled to a preliminary injunction because (1) they are likely to succeed on the merits; (2) they will suffer irreparable harm by way of loss of market share and price erosion in the absence of a preliminary injunction; (3) the balance of hardships favors the plaintiffs; and (4) a preliminary injunction is in the public interest.[1]

On February 12, 2013, counsel for Kimberly-Clark entered an appearance and filed a consent motion to extend the time to respond to the preliminary injunction motion until March 8, 2013.

The case is Pedigo Prods., Inc. et al. v. Kimberly-Clark Worldwide, Inc. et al., No. 1:13-cv-398-SCJ, United States District Court for the Northern District of Georgia, Atlanta Division, and is assigned to Judge Steve C. Jones.


[1] See, e.g.Revision Military, Inc. v. Balboa Manufacturing Co., 2011-1628 (Fed. Cir. Nov. 27, 2012).  For a copy of the full opinion, click here.

Copyright © 2014 Womble Carlyle Sandridge & Rice, PLLC. All Rights Reserved.

About the Author

Preston H Heard, Womble Carlyle Law Firm, Intellectual Property Attorney
Partner

Preston Heard is an experienced patent litigation attorney who represents clients in a variety of industries, including the mechanical, computer and chemical sectors, in patent-related disputes.

 A registered patent attorney, Preston has represented patent clients in U.S. District Court in numerous states, as well as before the U.S. International Trade Commission. He works with patent owners to devise overall strategies to protect and enforce patent rights and to assess potential patent-related claims. He also works with clients to develop effective defenses against patent...

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