The Cost Of Inconsistency

Submitted by patentadmin on Mon, 12/21/2009 - 21:10

Some time ago, Smith & Nephew, Inc. sued Arthrex, Inc., claiming it had infringed a patent related to suture anchors for repairing damaged tissue. The jury found for the plaintiff and awarded $15M in damages. The trial court then granted the plaintiff a permanent injunction. Arthrex, as losing defendants are wont to do, appealed. Earlier this month, the C.A.F.C. handed down its decision. (Smith & Nephew Inc. et al. v. Arthrex Inc.)

The C.A.F.C. remanded the case for a new trial, on the grounds that the trial court’s construction of a key claim term was in error as it conflicted with the C.A.F.C.’s own earlier construction of the same claim term in an earlier case involving the same patent. This decision not only overturned the jury verdict, it also extinguished the injunction.

THE LESSON TO BE LEARNED: The C.A.F.C. gets the final say; once it has decided a matter, don’t take a conflicting position in subsequent litigation.

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