Fed Circuit refuses to hear $23m Medtronic loss
The US Court of Appeals for the Federal Circuit has rejected Medtronic’s attempt to revisit a ruling that lumbered the medical device company with a $23 million loss.
Yesterday, April 29, the Federal Circuit denied Medtronic’s petition for rehearing and rehearing en banc, in the suit involving patents owned by a spine surgeon.
In January this year, the Federal Circuit upheld the jury damages award for surgeon Mark Barry, who owns US patent numbers 7,670,358 and 8,361,121 for “methods and systems for correcting spinal column anomalies”.
Medtronic had appealed against an earlier ruling by the US District Court for the Eastern District of Texas, which said the company had infringed several claims in the two patents.
The patents cover a tool developed by Barry in 2003, which allowed him to grab pedicle screws in vertebrae and move them during spine surgery.
That same year, Barry used the tool in three surgeries and, in January 2004, publicised his tool in a professional forum.
Fast-forward to 2016, when Medtronic launched its vertebral column manipulation (VCM) kit, used in conjunction with Medtronic’s CD Horizon Legacy and Solera spinal surgery systems.
The systems consist of rods, hooks, and screws for implantation in the spine to correct the abnormal curvature.
Barry then claimed that the combination infringed both patents and that Medtronic had induced surgeons to infringe the patents by training them how to use the VCM kit.
Before the Federal Circuit, Medtronic alleged that the ‘358 patent was invalid under the “public use” bar because it had been in use more than one year before the patent application was filed.
Barry had filed his patent application on December 30, 2004, which meant the tool had to be in public use and ready for patenting before December 30, 2003.
The Federal Circuit, in January, sided with Barry after finding that the invention was ready for use before December 30, 2003 and that the only public use was the three surgeries, which the court deemed an “experimental use” of the invention.
Medtronic also argued that one of its surgeons, Lawrence Lenke, had been developing a similar spine derotation project since 2002 and was a prior inventor.
However, the Federal Circuit affirmed the jury’s finding that Lenke “did not reduce the claimed invention to practice” before Barry.
Did you enjoy reading this story? Sign up to our free newsletters and get stories like this sent straight to your inbox.
Already registered?
Login to your account
If you don't have a login or your access has expired, you will need to purchase a subscription to gain access to this article, including all our online content.
For more information on individual annual subscriptions for full paid access and corporate subscription options please contact us.
To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.
For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at atapping@newtonmedia.co.uk