Judge Chastises Howmedica for “Deception” and “Misconduct”

On May 17, 2018, we reported that a federal judge in New Jersey awarded Zimmer Biomet Holdings, Inc. $13.3 million in attorneys’ fees and another $500,000 in costs after a ten-year patent battle with Stryker Corp.’s Howmedica Osteonics Corp. The award also resulted in the invalidation of four of Howmedica’s patents.

Turns out there was more to the story after the judge’s full opinion was made public on May 23, 2018.

U.S. District Judge William H. Walls chastised Howmedica for “litigation misconduct” and “deceptive intent” before the courts and the patent office that he said proves the case was exceptional enough to warrant attorneys’ fees.

Law360 reports that during the patent lawsuit, Howmedica didn’t disclose that one of its “independent” experts, identified as “Dr. Wang,” was really an employee of the company.

Wang, according to Walls’ opinion, “had an outsized role in obtaining the patents at issue” even though he wasn’t the inventor, contradicted his own publications that were used in the lawsuit and selectively chose or omitted information during his testimony.

Walls wrote, “Under these circumstances, it is proper to infer deceptive intent from the very fact that the papers were not disclosed. It is improbable that Dr. Wang forgot that he had written a series of papers on the exact same subject on which he was now submitting an affidavit just five years earlier. Because the material omission was a paper authored by [the] very individual who failed to disclose it, the ‘single most reasonable inference’ is that the patentee intended to deceive the PTO [Patent Trademark Office].”

During the lawsuit, reports Law360, Howmedica had to defend its IP against a piece of prior art called Lue, but instead of fighting back against the art, Walls noted the company “[adopted] a completely new and contradictory position.”

By doing so, “plaintiff demonstrated that it knew what defendant, the Federal Circuit, and the PTAB [Patent Trial and Appeal Board] ultimately agreed upon: the Lue reference invalidated their patents,” the judge wrote. “To continue to pursue claims that it knew were baseless over a period of ten years amounts to litigation misconduct.”

Neither company responded to Law360 requests for comment.

The patents-in-suit are U.S. Patent Numbers 6,174,934; 6,372,814; 6,664,308; and 6,818,020.

The case is Howmedica Osteonics Corp. v. Zimmer Inc. et al., case number 2:05-cv-00897, in the U.S. District Court for the District of New Jersey.