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23 January 2018Americas

Federal Circuit affirms Gilstrap medical device decision

The US Court of Appeals for the Federal Circuit has affirmed a decision by District Judge Rodney Gilstrap in a patent dispute between two medical device companies.

On Friday, January 19, the court backed Gilstrap’s decision to allow a jury at the US District Court for the Eastern District of Texas to not answer questions on validity.

Flexuspine, a spine implant manufacturer, filed a complaint against competitor Globus Medical, alleging infringement of five patents.

Globus denied the allegations and claimed the defences of non-infringement and invalidity.

Following inter partes review proceedings and claim construction, the court dismissed a number of Flexuspine’s claims and Globus’s counterclaims.

A magistrate judge also recommended that Globus’s motion for summary judgment of non-infringement be granted for US patent number 8,123,810, called “Expandable intervertebral implant with wedged expansion member”. The district court adopted this recommendation.

The district court adopted Flexuspine’s proposed verdict form—which conditioned the invalidity question on an infringement finding—nearly word-for-word.

However, the jury filled out the form incorrectly because they answered “no” to all parts of the first question asking whether there was infringement, but didn’t heed the verdict form’s instruction to stop, and continued to answer questions 2 and 3 (the questions concerning invalidity and damages).

The jury was then instructed to retire again and return a correct verdict form.

When the jury returned with a correct form without answering the validity or damages questions, Globus lodged its first formal objection to the verdict form.

It then filed a rule 59(e) motion requesting that the judgment be amended to include the jury’s verdicts on lack of validity, which Flexuspine opposed.

The district court denied Globus’s motion and dismissed the invalidity counterclaims without prejudice.

Globus then appealed to the Federal Circuit, while Flexuspine cross-appealed from the district court’s pre-trial order granting summary judgment of no infringement of the ‘810 patent.

According to Globus, a judgment of invalidity needed to be added to the district court’s judgment to “correct the manifest errors of law”. It added that the jury overlooking the stop instructions was not sufficient to make the verdict “internally inconsistent”.

But the Federal Circuit sided with the lower court on both arguments, stating that it declined to “disturb the district court’s proper exercise of its discretion”.

Flexuspine’s cross-appeal was also dismissed.

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