UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marine Polymer Technologies, Inc.

v. Civil No. 06-cv-100-JD

Opinion No. 2010 DNH 025

HemCon, Inc.

O R D E R

HemCon, Inc. moves to reopen discovery in this case for

thirty days to allow it time to address an FDA submission, which

Marine Polymer Technologies, Inc. recently produced to supplement

its discovery disclosures, and a statement in Vascular Solutions,

Inc. v. Marine Polymer Technologies, Inc., 590 F.3d 56 (1st Cir.

2009), pertaining to sales of a Marine Polymer product. HemCon

argues that Marine Polymer failed to disclose the FDA submission

in a timely manner and failed to disclose testimony given in the

Vascular Solutions litigation. Marine Polymer objects,

contending that the discovery HemCon seeks was previously

available and is irrelevant. 

Discussion

HemCon asserts that on December 11, 2009, Marine Polymer

made a supplemental discovery production, disclosing a document

submitted to the FDA and titled “Substantial Equivalence

Case 1:06-cv-00100-JD Document 184 Filed 02/16/10 Page 1 of 7
Comparison Chart and Labeling of Predicate Devices,” which

discloses information that HemCon contends is pertinent to its

invalidity counterclaims and to its inequitable conduct defense. 

HemCon also asserts that when the First Circuit’s decision in the

Vascular Solutions case was issued on December 23, 2009, it

realized that case included pertinent information about damages

in this case, contrary to the representations Marine Polymer had

made about the subject of that litigation. HemCon asks that

discovery be reopened for thirty days to allow it to depose

Marine Polymer’s witnesses on the subjects of the scope and

content of prior art, Marine Polymer’s knowledge of the prior

art, and the market share and the effects of non-infringing

competitors’ products.

In support of its motion, HemCon relies on the court’s

discretion in controlling pretrial matters, including discovery,

rather than the sanctions available under Federal Rule of Civil

Procedure 37.1 See Fusco v. Gen. Motors Corp., 11 F.3d 259, 267

1HemCon also warns that “when a lower court’s discovery

order results in manifest injustice, a court of appeals will

intervene,” citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d

179, 186 (1st Cir. 1989). In Mack, the First Circuit explained

that on appeal, discovery orders are subject to the abuse of

discretion standard so that the appeals court “will intervene in

[discovery] matters only upon a clear showing of manifest

injustice, that is, where the lower court’s discovery order was

plainly wrong and resulted in substantial prejudice to the

aggrieved party.” To the extent HemCon intends to suggest that

2

Case 1:06-cv-00100-JD Document 184 Filed 02/16/10 Page 2 of 7
(1st Cir. 1993). “Federal trial courts enjoy broad discretion in

managing the pace of pretrial proceedings, including the timing

of discovery.” Vineberg v. Bissonnette, 548 F.3d 50, 54 (1st

Cir. 2008). In exercising its discretion, a court considers any

extenuating circumstances and the sufficiency of the time that

was allowed for discovery, whether the party seeking additional

discovery demonstrates “relevant leads” that would result from

reopening discovery, and whether additional discovery would delay

the proceedings. Id. at 55. 

A. Comparison Chart Submitted to the FDA

HemCon states that based on the recently disclosed

Comparison Chart, it discovered a European patent that is prior

art to the ‘245 patent. The referenced patent relates to “Wound

surface-covering sheets” made of a combination of collagen and

chitin.2 HemCon represents:

the First Circuit would review a discovery ruling on an

interlocutory basis, Mack does not appear to support that theory.

The Federal Circuit reviews discovery issues for an abuse of

discretion under the governing law of the regional circuit. 

Autogenomics, Inc. v. Oxford Gene Tech. Ltd., 566 F.3d 1012, 1021

(Fed. Cir. 2009).

2Although HemCon refers to a European patent, the document

it submitted to support its motion is a “European Patent

Application.”

3

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This information would have inevitably led to further

depositions of Marine Polymer’s witnesses regarding the

scope and content of the prior art, Marine Polymer’s

knowledge of material prior art not disclosed to the

United States Patent and Trademark Office (“PTO”), and

Marine Polymer’s intent with regard to the failure to

disclose material prior art to the PTO during

prosecution of the ‘245 patent.

HemCon contends that at the least, the Comparison Chart would

have added to the prior art referenced in its motion for summary

judgment on the issue of patent invalidity.3

Marine Polymer asserts that the European patent was publicly

available and could have been found through a word search of

prior art. In addition, Marine Polymer contends that the

European patent does not affect the validity of the ‘245 patent

because it does not disclose biocompatible p-GlcNAc,

biocompatibility testing of p-GlcNAc, or other properties of the

‘245 patent claims. Marine Polymer represents that the invention

the European patent discloses, “a sterile chitin collagen bandage

with no adhesion for accomplishing rapid cure of wounds,” is

merely cumulative to other references HemCon raised in support of

its motion for summary judgment on invalidity.

Trial is scheduled to begin in this case in the middle of

April, after having been rescheduled several times. Most

3HemCon does not explain how the Comparison Chart led to the

discovery of the European patent.

4

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recently the date was delayed for a month, in response to

HemCon’s motion, to accommodate mediation. Reopening discovery

would require a further delay in the trial schedule. Given the

age of the case and the disposition of the infringement claims,

substantial justification is necessary to support a further delay

in the trial schedule. 

HemCon’s argument in support of reopening discovery to

address the European patent it discovered through the Comparison

Chart is vague at best. HemCon does not explain what prior art

the European patent reveals that was unknown before the

Comparison Chart was disclosed, what knowledge of prior art it

wishes to explore, or what prior art was not disclosed to the

PTO.4 HemCon’s vague references to inevitable further

depositions do not support its request sufficiently to justify

reopening discovery at this late stage in the litigation.

B. Vascular Solutions Case

HemCon also contends that although Marine Polymer disclosed

the Vascular Solutions litigation, HemCon was misled about the

4To the extent HemCon suggests that Marine Polymer’s

substantial equivalence representation to the FDA is significant

to infringement or patent invalidity, it has not demonstrated

that to be the case. See, e.g., CardioVention, Inc. v.

Medtronic, Inc., 483 F. Supp. 2d 830, 840 (D. Minn. 2007).

5

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subject matter. Specifically, HemCon argues that Marine Polymer

represented that the Vascular Solutions case was simply a trade

defamation case and did not disclose that the case also involved

information about competing products and market share, which

HemCon asserts is pertinent to damages in this case. Marine

Polymer responds that the Vascular Solutions case was public and

that HemCon knew that Marine Polymer and Vascular Solutions made

competing products, which was a subject at the deposition of

Marine Polymer’s witness, John Vournakis, in May of 2007. 

HemCon’s claim of being misled is not persuasive. The

Vascular Solutions case was filed in the District of

Massachusetts on October 17, 2005, 05-cv-12092-RWZ. Information

about the case has been publicly available through the electronic

docket since that time. The amended complaint alleges claims of

business defamation, product disparagement, unfair competition,

and intentional interference with business relationships. Given

the breadth of the claims, HemCon would have been well-advised to

keep abreast of the issues and decisions in that case. 

Therefore, HemCon’s theory that it did not realize the scope of

the case until the First Circuit issued its decision in December

of 2009, is not a persuasive ground for reopening discovery.

6

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Conclusion

For the foregoing reasons, the defendant’s motion for

discovery (document no. 176) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

February 16, 2010

cc: Julie M. Baher, Esquire

Garet K. Galster, Esquire

Daniel R. Johnson, Esquire

Heather E. Krans, Esquire

Joseph A. Kromholz, Esquire

Lynda Q. Nguyen, Esquire

Brian M. Poissant, Esquire

Daniel D. Ryan, Esquire

Ognian V. Shentov, Esquire

Jonathan M. Shirley, Esquire

Daniel E. Will, Esquire

Leigh S. Willey, Esquire

7

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