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Acantha LLC v. Depuy Orthopaedics., Inc.

United States District Court, E.D. Wisconsin

April 25, 2018

ACANTHA LLC, Plaintiff,
v.
DEPUY ORTHOPAEDICS INC., et al., Defendants.

          DECISION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT ON INFRINGEMENT

          William C. Griesbach, Chief Judge

         In this 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.

         BACKGROUND

         The ‘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:

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         ‘008 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.

         Acantha 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 the plates.

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         Defs.' 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.

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         Defs.' Mem. in Support of Mot. for Partial Summ. J. of Noninfringement at 9, ECF No. 152.

         The 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.

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         Id. 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.

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         Defs.' Mem in Support of Mot. for Partial Summ J. of Noninfringement at 10, ECF No. 152.

         Because 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. Id.

         LEGAL STANDARD

         Summary 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 ...


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