No Rinse and Repeat in Vaginal Applicator Suits

WASHINGTON (CN) - A woman who failed over 10 years ago to sue Johnson & Johnson over her vaginal applicator patent cannot try again, a federal judge ruled.

The case marked the second complaint that Allegra Hemphill has filed against Johnson & Johnson and her fifth complaint total, alll pertaining to the vaginal applicator patent, according to the ruling.

The U.S. Patent and Trademark Office issued Hemphill a patent in 1985 with two independent claims describing a disposable vaginal swab, intended to be used for cleansing or treating the vaginal area.

Her 1999 lawsuit against Johnson & Johnson took aim at its Stayfree, Carefree and Serenity sanitary napkins and adult incontinence products, but a Maryland federal judge found that the products did not infringe, and the Federal Circuit affirmed.

Courts later rejected three separate complaints Hemphill filed against Kimberly-Clark Corp. and Procter & Gamble Co. She sued Johnson & Johnson for the second time in 2012.

This complaint also claimed that Stayfree and Carefree products infringed on Hemphill's patent.

U.S. District Judge Colleen Kollar-Kotelly dismissed Tuesday after finding that the case was not timely filed since Hemphill's patent expired in 2002.

She declined to reach Johnson & Johnson's additional argument to apply the doctrine of res judicata, which prohibits refiling legal claims that could have been litigated in prior actions.

"The plaintiff implies in her opposition that the reexamination certificate issued by the United States Patent and Trademark Office on January 26, 1999, somehow altered the term of [Hemphill's] patent," Kollar-Kotelly wrote. "To the contrary, reexamination certificates do not alter the term of a patent, even if a new claim is added or an original claim is amended during reexamination."

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