United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge.
Acantha LLC brought this suit in 2015 against Defendants
DePuy Synthes Sales Inc. and DePuy Synthes Products Inc.,
alleging Defendants' Vectra and Zero-P VA products
infringe various claims of its patent, U.S. Reissued Patent
No. RE43, 008 (the ‘008 Patent). After a seven day
trial, the jury returned a verdict finding that
Defendants' products infringe the ‘008 Patent. The
jury did not specify whether it found literal infringement or
infringement under the doctrine of equivalents. In addition,
the jury found that the infringement was willful and awarded
damages in the amount of $8, 248, 560.00.
the trial, Defendants filed a timely motion for judgment as a
matter of law under Federal Rule of Civil Procedure 50(a),
asserting that they do not infringe any of the asserted
claims of the ‘008 Patent and that the Campbell
‘089 Patent is prior art. The court took those motions
under advisement. Defendants now renew their motion for
judgment as a matter of law pursuant to Rule 50(b) and move
to amend the judgment pursuant to Rule 59(e). Acantha, for
its part, moves for enhanced damages and other post-trial
legal and equitable relief pursuant to Rule 59. For the
following reasons, both motions are partially granted.
is the owner of U.S. Patent No. 6, 261, 291, which was issued
on July 17, 2001. That patent was later reissued as U.S.
Patent No. RE43, 008 on December 6, 2011. The ‘008
Patent, entitled “Orthopedic Implant Assembly, ”
describes an orthopedic implant 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. Acantha asserts claims 3, 9, 21,
36, 37, 59, 63, 72, 79, and 85 of the ‘008 Patent. 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, as shown
Patent at 2, Dkt. No. 1-3. As the screw is turned and recedes
into the bore, its head expands the snap-ring into the
groove. 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. 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.
claims Defendants' Vectra and Zero-P VA products
infringe. The Vectra line consists of three different
anterior cervical plating products: Vectra, Vectra-T, and
Vectra-One. These products can be distinguished by their
anterior cervical plates.
No. 159-2 at 6-7. A surgeon attaches the Vectra to the
surface of a vertebrae of the cervical spine. The Vectra
designs cover two intervertebral disc spaces, as shown below.
Zero-P VA is a member of the Zero-P family of products.
Unlike the Vectra line, the Zero-P VA is a standalone
intervertebral product to be used in the anterior cervical
spine. The product is comprised 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.
No. 159-9 at 24. During implantation, the surgeon inserts the
spacer/plate portion of the Zero-P VA into an intervertebral
disc space, rather than place the product on the surface of
the anterior cervical spine. The Zero-P VA's
contralateral stops rest on the surface of the spine, as
No. 159-3 at 2, 5. 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. 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. After the screw passes the
protruding portion of the catch, the spring pushes the catch
outward into its original position. The catch prevents the
screw from backing out of the bone.
No. 159-9 at 33, 35.
Defendants' Rule 50(b) Renewed Motion for Judgment as a
Matter of Law
court will first address Defendants' motion for judgment
as a matter of law pursuant to Rule 50(b) and to amend the
judgment under Rule 59(e). Rule 50 “allows a district
court to enter judgment against a party who has been fully
heard on an issue during a jury trial if ‘a reasonable
jury would not have a legally sufficient evidentiary basis to
find for the party on that issue.'” Passananti
v. Cook Cty., 689 F.3d 655, 659 (7th Cir. 2012)
(citation omitted). The court is to decide “whether a
highly charitable assessment of the evidence supports the
jury's verdict or if, instead, the jury was irrational to
reach its conclusion.” Thorne v. Member Select Ins.
Co., 882 F.3d 642, 644 (7th Cir. 2018) (internal
quotation marks omitted). The court must view the evidence
presented at trial in the light most favorable to the party
that prevailed before the jury and draw all reasonable
inferences in that party's favor. Martin v. Milwaukee
Cty., 904 F.3d 544, 550 (7th Cir. 2018). The court may
not weigh the evidence or make credibility determinations.
Martinez v. City of Chicago, 900 F.3d 838, 844 (7th
Cir. 2018). Although the court reviews the entire record,
“it must disregard all evidence favorable to the moving
party that the jury [was] not required to believe.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150-51 (2000); Tart v. Ill. Power Co., 366 F.3d
461, 478 (7th Cir. 2004). Overturning a jury verdict is not
something that courts do lightly. Massey v. Blue
Cross-Blue Shield of Ill., 226 F.3d 922, 925 (7th Cir.
2000). A jury verdict will be overturned only if “the
moving party can show that no rational jury could have
brought in a verdict against it.” Hossack v. Floor
Covering Assocs. of Joliet, Inc., 492 F.3d 853, 859 (7th
Cir. 2007) (internal citations and quotation marks omitted).
raise a number of arguments in their renewed motion for
judgment as a matter of law: (1) the Zero-P VA does not
infringe; (2) the Vectra does not literally infringe and a
finding of equivalence is barred as a matter of law; (3) the
jury's finding of willfulness should be vacated; (4)
Acantha did not prove induced infringement; (5) Campbell is
prior art to the ‘008 Patent; (6) the court should
vacate or amend the damages award to account for
non-infringement; and (7) the court should amend the judgment
in favor of the six dismissed-claims defendants. The court
will address each in turn.
assert that they are entitled to judgment as a matter of law
of no literal infringement with respect to the Zero-P VA and
Vectra products. Defendants also argue, in the alternative,
that a finding of equivalence is barred as a matter of law.
Because the court finds insufficient evidence to support a
finding that the Zero-P VA product infringed, but that
substantial evidence supports a finding of literal
infringement by the Vectra products, the court will not
address Defendants' equivalency arguments.
establish literal infringement, every limitation set forth in
a claim must be found in an accused product, exactly.”
Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d
1570, 1575 (Fed. Cir. 1995). “[T]he burden remains with
the patentee to prove infringement, not on the defendant to
disprove it.” Welker Bearing Co. v. PHD, Inc.,
550 F.3d 1090, 1095 (Fed. Cir. 2008). Whether Defendants'
products meet all the claim limitations is a question of fact
for the jury to decide. See Akzo Nobel Coatings, Inc. v.
Dow Chem. Co., 811 F.3d 1334, 1339 (Fed. Cir. 2016)
(citing Absolute Software, Inc. v. Stealth Signal,
Inc., 659 F.3d 1121, 1129-30 (Fed. Cir. 2011)). Judgment
as a matter of law of no literal infringement is nevertheless
“appropriate if no reasonable fact finder could
determine that the accused devices meet every limitation of
the properly construed claims.” Riles v. Shell
Exploration & Prod. Co., 298 F.3d 1302, 1308 (Fed.
Cir. 2002) (quoting Elkay Mfg. v. EBCO Mfg., 192
F.3d 973, 980 (Fed. Cir. 1999)).
argue that Acantha did not present sufficient evidence at
trial to support findings of literal infringement as to the
Zero-P VA. First, Defendants contend that Acantha did not
meet its burden of proof with respect to infringement because
it failed to establish that the Zero-P VA has an
“anterior” surface or a “posterior”
surface required by the asserted claims. The ‘008
Patent involves an orthopedic implant assembly that has a
stabilizing element with anterior and posterior surfaces. By
way of example, Claim 59 reads in relevant part:
orthopedic attachment assembly, comprising:
a) an elongated securing element having an enlarged integral
portion with a length, an anterior surface, a posterior
surface and a transverse dimension;
b) an attachment element which has an anterior surface and a
posterior surface and which has at least one bore extending
through the attachment element from the anterior surface to
the posterior surface and is configured to receive the
securing element, the bore having an anterior bore portion,
and a posterior bore portion, the posterior bore portion
having at least one transverse dimension smaller than the
transverse dimension of the enlarged integral portion of the
securing element to facilitate retention of the enlarged
integral portion of the securing member with the posterior
bore portion; and
c) a biased stopping member which has a posterior stopping
surface, a first configuration which extends within the bore
that is elastically deformed to a second configuration as the
enlarged portion of the securing member passes into the
posterior bore portion, the biased stopping member returning
to the first configuration upon passage of the enlarged
integral portion into the posterior bore portion, the
posterior surface of the biased stopping member configured to
engage with the anterior surface of the enlarged integral
portion of the securing ...