Covidien wants Supreme Court to hear appeal in $177m patent spat with Ethicon

Medtronic‘s (NYSE:MDT) Covidien subsidiary wants the U.S. Supreme Court to hear its appeal in a patent infringement case against Johnson & Johnson‘s (NYSE:JNJ) Ethicon Endo-Surgery unit over surgical shears.

In December 2014 the U.S. Court of Appeals for the Federal Circuit overturned a decision granting a $177 million award to Covidien in the U.S. District Court for Connecticut, where Judge Janet Bond Arterton had ruled that Ethicon Endo-Surgery infringed surgical shears patents held by Covidien’s corporate predecessors, Tyco Healthcare and U.S. Surgical Corp.

The Federal Circuit vacated the damages award, ruling that an Ethicon prototype anticipated the Covidien devices “because Ethicon conceived of the prototype before Tyco’s January 1997 conception date and diligently reduced it to practice without abandoning, suppressing, or concealing it thereafter,” Chief Judge Sharon Prost wrote for the 3-judge appeals panel. “The district court improperly held that the Ethicon prototype could not be considered prior art … and erred in finding that the curved blade claims and dual [cam] claims would not have been obvious.”

In a July 27 petition for certiorari from the high court, Covidien argued that the appeals court erred because the Ethicon prototype wasn’t complete or made public when Covidien patented its device.

“The Federal Circuit’s decision that such a secret conception can constitute prior art and thus invalidate a patent for obviousness contradicts the text of the statute, conflicts with this court’s prior decisions, and conflicts with the Federal Circuit’s own precedent,” Covidien argued, according to court documents. “Patentees must now defend the nonobviousness of their patents against a new universe of ‘prior’ art that post-dates their inventions.”

In October 2014, Covidien won an an injunction barring sales of Ethicon’s Harmonic Ace +7 shears from another federal judge in Connecticut, Judge Janet Hall, who declined to stay that proceeding pending the outcome of the Federal Circuit appeal in the 1st lawsuit. J&J has also appealed the injunction.

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