United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANTS' MOTIONS
FOR PARTIAL SUMMARY JUDGMENT ON INFRINGEMENT
William C. Griesbach, Chief Judge
action for patent infringement, Plaintiff Acantha LLC accuses
Defendants DePuy Synthes Sales, Inc., DePuy Synthes Products
Inc., DePuy Synthes Inc., Johnson & Johnson Inc., Synthes
Inc., Synthes USA LLC, DePuy Orthopaedics Inc., and DePuy
Spine LLC of infringing its patent, U.S. Reissued Patent No.
RE43, 008 (the ‘008 Patent). Presently before the court
is Defendants' motions for partial summary judgment of no
direct infringement by the accused Vectra products and
accused Zero-P VA product and for partial summary judgment of
noninfringement by the accused Zero-P VA product. For the
following reasons, Defendants' motions will be granted.
‘008 Patent, entitled “Orthopedic Implant
Assembly, ” issued on December 6, 2011. The claime d
invention generally relates to orthopedic implants used for
joining bone segments, for instance, in the treatment of
broken bones, spinal disorders, or the fusion of vertebrae
following the removal of a spinal disk. Defs.' Proposed
Findings of Fact No Direct Infringement (DPFOFNDI)
¶¶ 1-2, ECF No. 149. The asserted claims are
directed to an orthopedic implant that includes a stabilizing
member (such as a bone plate) with at least one hole through
the plate, a securing member (such as a bone screw), and a
stopping member (such as a snap-ring or integral collar) that
sits in a groove in the bore and prevents the screw from
backing out of the assembly:
Patent at 2, ECF No. 1 - 3. As the screw is inserted through
the bore, the screw expands the snap-ring into the groove as
the screw advances. Once the head of the screw passes through
the snap-ring, the snap-ring elastically returns to its
original shape. The snap-ring then prevents the screw from
backing out of the assembly. DPFOFNDI ¶ 6. This
orthopedic implant assembly can be durably attached to a
patient's bone and prevents a screw from loosening or
backing out of the bone.
asserts claims 3, 9, 21, 36, 37, 59, 63, 72, 79, and 85 of
the ‘008 Patent and contends that the accused Vectra
products infringe all of the asserted claims and that the
accused Zero-P VA products infringe claims 21, 36, 37, 59,
63, 79, and 85 of the ‘008 Patent. Id.
¶¶ 7-8. The Vectra line consists of three different
anterior cervical plating (ACP) products-Vectra, Vectra-T,
and Vectra-One-that are distinguishable by their plates. Each
product in the Vectra family contains an anterior cervical
plate, which is to be used with various Vectra screws. The
screws for the Vectra products are provided separately from
Mem. in Support of Mot. for Partial Summ. J. of No Direct
Infringement at 8, ECF No. 148. A surgeon attaches the plate
and screw to the surface of a vertebrae of the cervical
spine. DPFOFNDI ¶ 9. The Vectra designs cover two
intervertebral disc spaces, as shown below.
Mem. in Support of Mot. for Partial Summ. J. of
Noninfringement at 9, ECF No. 152.
Zero-P VA is part of the Zero-P family of products. Unlike
the Vectra products, the Zero-P VA is a standalone
intervertebral product to be used in the anterior cervical
spine, consisting of a spacer, a plate portion, and bone
screws. The Zero-P VA includes a spring-loaded
“snapper” mechanism designed to prevent screw
back out. The snapper mechanism consists of a cylindrical
catch (or pin), a spring, and a set screw.
at 12; Defs.' Proposed Findings of Fact Noninfringement
(DPFOFN) ¶ 11, ECF No. 153. During implantation, rather
than place the product on the surface of the anterior
cervical spine, the surgeon inserts the spacer/plate portion
of the Zero-P VA into an intervertebral disc space. The
Zero-P VA's contralateral stops rest on the surface of
the spine. Id. In the snapper mechanism's
resting state, the spring applies a force on the catch, which
positions a portion of the catch in the path of the bone
screw. Id. ¶ 12. As the bone screw is inserted
into the plate, the screw hits the catch and pushes it
further into the plate portion, compressing the spring.
Id. ¶ 14. After the screw passes the protruding
portion of the catch, the spring pushes the catch outward
into its original position Id. ¶ 15. The catch
prevents the screw from backing out of the bone. Id.
Mem in Support of Mot. for Partial Summ J. of Noninfringement
at 10, ECF No. 152.
both the Vectra and Zero-P VA products are compatible with
various screw types, the stabilizing member and screws are
separately packaged. Prior to surgery, a variety of plates
and screws are removed from their packaging and placed on a
tray for the surgeon to choose which product to use. DPFOFNDI
¶ 11. After the surgery, the hospital submits an invoice
for the components that were actually used by the surgeon.
judgment is appropriate when the moving party shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). All reasonable inferences are construed
in favor of the nonmoving party. Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit
evidentiary materials that set forth specific facts showing
that there is a genuine issue for trial.” Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010)
(citations omitted). “The nonmoving party must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Id. Summary judgment is
properly entered against a party “who fails to make a
showing sufficient to establish the ...