In the News The Am Law Litigation Daily

Kirkland, Dewey Win $101 Million Jury Verdict for Medtronic in Spinal Implant Patent Case

The verdict delivered on Tuesday by a San Diego federal district court jury in a patent infringement case involving Medtronic Inc. and NuVasive Inc. may have technically been split, but there's no doubt which side came out on top. After a two-week trial that began Aug. 30, the jury awarded nearly $102 million to Medtronic subsidiary Warsaw Orthopedic, after finding that NuVasive infringed three Warsaw patents covering spinal implants used in back surgery. 

The jury also found that Medtronic and Warsaw had infringed one of NuVasive's patents, but only awarded NuVasive $660,000. Medtronic is the exclusive licensee of the Warsaw patents at issue in the case.

The companies have been entangled in litigation for nearly three years. Medtronic and Warsaw sued NuVasive in October 2008 for allegedly infringing nine Warsaw patents related to surgical implants and processes for spinal surgery. NuVasive countered with claims that Medtronic and Warsaw infringed three of its own patents. Only four patents, three asserted by Warsaw and one by NuVasive, were at issue in the trial.

"This is really the first phase of a case that involves a number of additional patents," said Medtronic's lead lawyer, Luke Dauchot of Kirkland & Ellis. "How and when the rest of them are sorted out is still unknown at this juncture."

According to Bloomberg, the verdict is the fourth-largest award in 2011 in a patent infringement case. (The biggest verdict is still the $482 million award that New Jersey doctor Bruce Saffran won against Johnson & Johnson in April.) However, Dauchot, who worked alongside attorneys from Dewey & LeBoeuf, told the Litigation Daily that he plans on asking the court to increase the award because it only considers lost profits up until June 2010. Predictably, Dauchot also took issue with the jury's finding that his clients infringed NuVasive's patent. "We respect the jury's hard work and consideration on the '236 patent, but differ with the result and are in the process of assessing our options," he said.

NuVasive, meanwhile, vowed to fight on. "NuVasive believes the facts and the law do not support the jury's findings of infringement and validity, and will seek to overturn the verdict in post-trial motions with the District Court," the company said in a statement. NuVasive counsel Frank Scherkenbach of Fish & Richardson did not respond to requests for comment.