European Patent Office upholds Swissray claims of infringement

Four years after litigation began, the European Patent Office (EPO) has ruled against a French medical imaging company, upholding a patent that Swissray claims is key to its core imaging technology.

In its decision, the EPO declared that Swissray patent EP862748, which covers the company's static digital radiography detector, is valid and the appeal of DMS-Apelem of Nîmes, France, is without merit. Swissray, a pioneer in direct digital radiography, plans to continue the infringement litigation in France and expects a swift decision from the French Patent Court in Marseilles - one that cannot be successfully appealed, said Ueli Laupper, senior vice president of marketing.

The case began in 2000 after Swissray checked the technical approach that DMS-Apelem had taken in the development of its technology, specifically its Paladio high-resolution, large-field modular digital x-ray sensor. Laupper said Swissray routinely checks new technology for possible patent infringement.

"Our patent is quite a broad one," Laupper said. "Everyone who uses more than one CCD camera for direct digital radiography is infringing on our patent, because our patent is on a mirror optic. You need a mirror optic if you want to use more than one CCD camera."

According to Laupper, Swissray sued DMS-Apelem in France for patent infringement. DMS, in turn, filed an opposition to the Swissray patent in the European Patent Court based in Germany, requesting the patent's revocation. The EPO ruling was the first of any kind handed down since litigation began.

"The European court ruled in favor of Swissray, confirming our patent and denying their appeal," Laupper said.

He added that the case now goes back to the French court for final resolution.

"We are more than convinced we will win because European law supersedes French law," he said.

DMS-Apelem's roots go back to 1979, when Apelem was established as a medical imaging company. DMS was established as an ultrasound company in 1994, acquiring Apelem in 1999. In addition to the Paladio x-ray sensor, DMS-Apelem's key products include Lexxos, a total-body bone densitometer.

Swissray was formed in 1988 as a subsidiary of Telray, a medical x-ray research and development company. Since then, it has grown to become a leading supplier of direct digital radiography technology, including its ddR line of systems.

Laupper said the patent in question is key to all of Swissray's imaging systems, including the ddR Combi Trauma, a direct digital radiography system that Swissray introduced during the 2004 RSNA scientific meeting.

He expects the ruling in France to set damages for DMS-Apelem's patent infringement. He said no negotiations have been initiated with the company but added that negotiations could begin if and when the French court rules in Swissray's favor.

Swissray has spent hundreds of thousands of dollars litigating the case, according to Lauper. The company has said its persistence in dogging DMS-Apelem sends a clear message that Swissray will pursue any company that tries to steal its intellectual property.

"This is a victory because it confirms our patent and sends a strong message to any imaging company trying to use more than one CCD camera that they will infringe upon Swissray's patent and they better not do it," he said. "It tells the world of medical imaging that Swissray is the DR supplier of choice."