Medtronic can’t shake spine surgeon’s patent suit

Medtronic (NYSE:MDT) can’t shake an infringement lawsuit brought by a Nevada spine surgeon over patents covering the scoliosis treatment he created, but won’t be subject to pre-case damages on all of the patents, a federal judge ruled last week.

Dr. Mark Barry sued in February 2014, alleging that Medtronic’s CD Horizon Legacy spinal system infringes the patents, all entitled “System and Method for Aligning Vertebrae in the Ameliorating of Aberrant Spinal Column Deviation Conditions,” according to court documents. They cover a method for aligning vertebrae with a tool that allows a single surgeon to rotate the spinal column as a whole, using pedicle screws, spinal rods and a “pedicle screw cluster derotation tool,” according to the documents.

Medtronic filed a pair of motions for summary judgment, 1 arguing prior public use of the invention and the other arguing that Barry failed to mark the patents and thus isn’t entitled to pre-suit damages.

Judge Ron Clark of the U.S. District Court for Eastern Texas shot down the public use claim, but partially granted the 2nd motion, barring Barry from pre-case damages for 2 of the 3 patents. Medtronic can’t escape Barry’s inducement and contributory infringement claims, Clark also ruled.

“Medtronic has not established its prima facie case by clear and convincing evidence that the entire invention was in public use more than 1 year before the priority date of the parent patent. Dr. Barry has raised a genuine issue of fact as to whether any prior use was experimental,” Clark wrote in the July 21 rulings. “Dr. Barry’s testimony that the first complete public use of the invention was a private surgery attended by a small group of hospital workers suggests that the ‘nature of the activity’ and ‘public access’ was limited. There is a fact issue as to confidentiality, based on affidavits submitted by individuals who had previously worked with Dr. Barry.”

On the induced and contributory infringement claims, Clark found that “Dr. Barry’s evidence at least establishes a fact question as to whether Medtronic ‘subjectively believe[d] that there [was] a high probability’ of infringement and took ‘deliberate actions to avoid learning of that fact.'” The judge also ruled that, because Barry failed to mark 2 of the 3 patented articles with “patent” or “pat,” he isn’t entitled to pre-suit damages on those devices.

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