A federal jury in Green Bay, Wisconsin, nicked DePuy Synthes for $8.2 million after finding the company willfully infringed on the patent of an Acantha LLC orthopedic implant.
Jury Rules Against DePuy Synthes in $8.2MM Patent Suit
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Secondary#depuysynthes#patentinfringement#orthopedicimplant
The jury deliberated for five hours after a seven-day trial and reached a unanimous decision, according to an August 23, 2018 announcement by attorneys for Acantha.
Acantha’s patent, according to Google Patents, issued to David Talaber and James Lloyd and assigned to Acantha, describes an orthopedic implant for joining bone segments, such as broken bones, spinal disorders or for fusing two vertebrae after a disc is removed. It was issued in 2008 as U.S. Patent Number 6,261,291 (‘291) and then reissued in 2011 as U.S. Patent Number RE43,008.
Acantha Allegations
The attorneys for Acantha said Talaber reached out to medical device companies, including multiple DePuy subsidiaries, in 2002 to see if they’d be interested in using the technology. Lloyd later tried to sell the technology to DePuy as well. DePuy reportedly turned down both overtures and did not license the patent for the technology.
In 2015 Acantha sued DePuy, (including J&J and other subsidiaries) alleging the companies infringed the reissued patent with some devices, including DePuy’s Zero-P VA System and Vectra used in bone-joining and spinal repairs.
Law360 reports that Acantha claimed that DePuy, “was well aware of the patent, given the multiple meetings about possibly licensing the technology. For example, a DePuy executive in 2006 mentioned that a separate company, Synthes, had a device that was probably infringing the technology, Acantha said. DePuy later acquired Synthes, so it should have at least known that the Synthes-branded device was in trouble.”
Award Capped
The $8.2 million award was the result of a cap established by the judge in April, limiting damages to the last four years.
The cap was put in place because when Acantha entered into an exclusive licensing deal for the ‘291 patent with Stryker Spine SA in 2003, it failed to enforce a provision of its licensing contract with Stryker, requiring that Stryker include the patent number on its labels. Therefore, ruled the judge, DePuy wasn’t on notice that its own devices were infringing the patent until an Acantha lawyer contacted them in March 2014 with a letter outlining patent claims.
DePuy didn’t respond to a request for comment from Law360.
‘291 Patent Abstract
The ‘291 patent, according to the patent abstract, is, “An orthopedic implant assembly comprising a stabilizing element, a securing element which attaches the stabilizing element to the bone, and a stopping member in the stabilizing element which inhibits the securing element from loosening or backing out of the bone. The stabilizing element has at least one bore with the stopping member therein.”
Click here to read the entire original abstract
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Discussion
This is a fascinating development. In my practice we've seen similar outcomes with the revised protocol. The key differentiator seems to be patient selection criteria. Has anyone else noticed the correlation with BMI thresholds?
Great point. I'd push back slightly on the conclusion, the sample size in the cited study is too small to draw population-level inferences. That said, the directional signal is compelling and worth a larger RCT.
We implemented a similar approach last year. Early results are promising but we're still gathering 12-month follow-up data. Happy to share our protocol if anyone is interested.
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