• Jan 24 2019
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  • Category: CAFC Updates

Dr. Barry brought this action alleging that Medtronic induced surgeons to infringe U.S. Patent Nos. 7,670,358 and 8,361,121 relating to methods and systems for correcting spinal column anomalies, such as those due to scoliosis. The jury found infringement of certain claims, rejected several invalidity defenses, and awarded damages. In post-trial rulings on the jury issues, the district court upheld the verdict.  Regarding invalidity, the CAFC concludes, inter alia, that the public-use challenge fails because the invention was not ready for patenting before the critical date and there was no public use except for an experimental use. Rejecting other arguments made on appeal regarding a jury instruction about experimental use, a prior invention challenge, an unenforceability argument based on submission of different x-rays in a drawing during prosecution, and the sufficiency of the “Neal Survey” as evidence of inducement, the CAFC affirms. Chief Judge Prost dissents in part suggesting that CFAC precedent requires invalidating the asserted claims of the ’358 patent under the § 102(b) as a matter of law because Dr. Barry waited too long to file for the ’358 patent and that the on-sale bar applies.

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