Medtronic asks Supremes to review loss to NuVasive

Medtronic (NYSE:MDT) this month asked the U.S. Supreme Court to review an appeals court’s decision upholding a patent infringement win for longtime spinal implant rival NuVasive Inc. (NSDQ:NUVA).

In April, the U.S. Court of Appeals for the Federal Circuit upheld without comment a U.S. Patent & Trademark Office decision that a NuVasive patent covering its is valid. Medtronic had argued that the PTO’s Patent Trial & Appeal Board broadened the patent during the validity battle with NuVasive, which took a re-examination and 2 hearings over the past 3 years. Although the board initially found for Medtronic’s broadness claim during the 1st hearing, it reversed itself during the 2nd hearing last year.

NuVasive had argued that the appeals bench should affirm the PTAB and uphold the patent’s standing, leaving intact a prior ruling of indirect infringement against Medtronic, on the grounds that it knew of NuVasive’s patent and instructed doctors to use its NIM-Eclipse device in a way that was later found to be infringing.

A month after the Federal Circuit ruling, however, the Supremes ruled in Commil v. Cisco Systems that if a company believes a patent to be invalid, it can’t be found to have indirectly infringed. Medtronic, in a June 17 certiorari filing with the high court, argued that the Commil decision also applies to the NuVasive beef.

“There is not a shred of evidence that Medtronic knew surgeons using its NIM-Eclipse medical device during spinal surgery would infringe NuVasive’s patent. Quite the opposite,” the company claimed, according to court documents. “Since 1st learning of NuVasive’s patent, Medtronic reasonable believed using its NIM-Eclipse device during surgery did not infringe under a proper reading of the patent claims.”

In another facet of the long-running legal battle with NuVasive, the Federal Circuit on March 2 overturned a lost profits award to Medtronic, ruling that a lower court erred in 2011 when it awarded Medtronic $101.2 million in the case and ordering a new trial to determine the correct amount.

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