Medical Device Maker Faces Lawsuit

January 13, 2006
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GRAND RAPIDS — Local entrepreneur Roosevelt Tillman is defending himself against a lawsuit claiming that his firm, Veteran Medical Products, violated patents and misappropriated trade secrets in the launch of its first offering last summer.

Tillman claims the pending litigation, concerning an ear curette currently marketed in partnership with Spectrum Health, is an effort by Ohio firm Bionix Development Corp. to "strong arm" market share.

"They're big boys that think that by beating you up financially, they can make you quit," Tillman said in an interview last week. "Now, we have to spend money for something totally erroneous."

Tillman believes that disproving the patent infringement should be a "slam dunk."

"They look nothing alike — zero," he said.

He added that his company has a patent pending on its product.

Tillman's counsel, Eugene Rath of Price, Heneveld, Cooper, DeWitt & Litton LLP in Grand Rapids, declined to comment for this article.

The six-year-old Bionix patent was awarded for design and not function, and, to the untrained eye, there is an obvious resemblance between the two offerings. (See picture.) The largest difference between Tillman's Clean Ear Disposable Ear Curette and the Bionix Safe Ear Curette appears to be the ribbed Certain Grip handle of the Tillman line.

Two years ago, Tillman launched Tillman Industries Inc. in an abandoned space at

630 S. Division Ave.
in Grand Rapids. Months into the venture, the city granted an additional tax abatement on his Renaissance Zone factory to retool the injection molding business to serve the medical device industry.

The facility was renovated into one of the region's largest clean rooms, and the new company, Veteran Medical Products, quickly attracted the attention of health care purchasing agents. Tillman's company was extremely competitive because of its many designations as a disadvantaged business, including its Renaissance Zone location and ownership by a military veteran and minority. Tillman contends this market threat is the leading factor in the lawsuit.

Either way, when Tillman announced a partnership with Spectrum Health and purchasing group giant VHA Inc. in July, the West Michigan firm was immediately contacted by its Ohio competitor.

Bionix, of Toledo, Ohio, was founded 22 years ago by physician Andrew Milligan. The company last year won a Medical Design Excellence Award for an unrelated curette. According to court documents and attorney Karen Wensink of McHugh, DeNune & McCarthy in Toledo, representing Bionix, Milligan originally contacted Tillman in September concerning the allegations.

Milligan's suit, filed in Ohio's Northern U.S. District Court on Oct. 4, alleges that Tillman developed his line with designs used to manufacture Bionix's products at the Grand Rapids office of The Tech Group, a contract manufacturer.

Five former employees of the injection molder are now employed by Tillman Industries: Joseph Szyperski, Patrick Eddy, John Kotwick, Mark Longcore and Ryan Heidenfeld.

"What's assumed at this point is that Tillman said, 'We'll offer you employment, bring all the information that you know,'" said Wensink. "And they started to create and market an ear curette with the information they stole from Bionix."

This is supported by an October letter from The Tech Group to its former employees reminding them of their confidentiality agreement. That letter claims Tillman contacted another Tech Group client, Medtronic, with confidential information about its products known only to the Grand Rapids engineering crew.

Over the course of three September phone conversations and a written letter from Milligan to Tillman, the alleged infringement, according to Bionix statements, was apparently resolved. But Tillman then filed a lawsuit late that month demanding a jury trial in the Western District of Michigan in Grand Rapids. His case asserts damages from Bionix's harassment of its employees and partners, namely Classic Die, of Grand Rapids, whom Milligan called to warn against litigation.

Bionix has filed for dismissal in Grand Rapids, and wants to proceed with the corresponding suit in Toledo. It claims that Tillman's lawsuit is an attempt at moving the case to "a more favorable forum" in Grand Rapids. Tillman filed a brief opposing that request in December.

"It's a jurisdictional question right now," Wensink said.

Currently at issue is whether Tillman's case qualifies under the "first-to-file" rule, or if it is an example of, as Wensink argues, "forum shopping."   

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