Acantha LLC v. DePuy Synthes Sales Inc.

• Decision Date: 05 August 2019
• Docket Number: Case No. 15-C-1257
• Citation: 406 F.Supp.3d 742
• Parties: ACANTHA LLC, Plaintiff, v. DEPUY SYNTHES SALES INC. and DePuy Synthes Products Inc., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

406 F.Supp.3d 742

ACANTHA LLC, Plaintiff,

v.DEPUY SYNTHES SALES INC. and DePuy Synthes Products Inc., Defendants.

Case No. 15-C-1257

United States District Court, E.D. Wisconsin.

Signed August 5, 2019

Bradley W. Caldwell, Christopher S. Stewart, Daniel R. Pearson, Jason D. Cassady, John Austin Curry, John Franklin Summers, Robert Seth Reich, Jr., Caldwell Cassady & Curry PC, Dallas, TX, T. Wickham Schmidt, T. Wickham Schmidt Esq, PSC, Green Bay, WI, for Plaintiff.

Calvin P. Griffith, Kenneth S. Luchesi, Patrick J. Norton, Thomas S. Koglman, Jones Day, Cleveland, OH, John P. Fredrickson, Boyle Fredrickson SC, Milwaukee, WI, Jonathan T. Smies, Godfrey & Kahn SC, Green Bay, WI, Tracy A. Stitt, Jones Day, Washington, DC, for Defendants.

DECISION AND ORDER

William C. Griesbach, Chief Judge

Plaintiff 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.

During 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.

BACKGROUND

Acantha 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 below:

'008 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.

Acantha 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.

Dkt. 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.

Id. at 4.

The 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.

Dkt. 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 shown below.

Dkt. 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.

Dkt. No. 159-9 at 33, 35.

ANALYSIS

I. Defendants' Rule 50(b) Renewed Motion for Judgment as a Matter of Law

The 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, 120 S.Ct. 2097, 147 L.Ed.2d 105 (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).

Defendants 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.

A. Infringement

Defendants 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.

"To 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) ).

1. Zero-P VA

Defendants 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:

An 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

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