Federal Judiciary

Judgment as a Matter of Law Granted on Willful Infringement Claims in Smith & Nephew case

By Michael C. Smith

As readers know, the Smith & Nephew v. Arthrex case dealing with the defendant's RetroButton ACL repair device is in its fifth day of trial today in snowy Marshall.  Judge Ward has now granted the defendant's motion for judgment as a matter of law with respect to the plaintiff's willful infringement claims (a motion for reconsideration of that decision was filed this morning).

As readers know, I have been posting recently (and including in my talks) recent decisions by judges and juries post In re Seagate to not submit (or not find) willful infringement, either by judges taking it out of the case by summary judgment (Crane v. SandenVendo)or judgment as a matter of law prior to submission to the jury (Southwest EFuels v. 3T), the jury not finding it, or granting a JMOL after the jury finds it (Centocor v. Abbott and Opti v. Apple).  This case is the second in the past month (Southwest EFuels v. 3T in January) in which Judge Ward declined to allow a willful infringement claim to go to the jury (to be fair, the JMOL was on all infringement claims in that case, so the ruling had nothing to do with willful infringement per se), and follows a couple of other postverdict findings by Judge Ward and Judge Everingham last fall (Centocor v. Abbott and Opti v. Apple) where willful infringement findings by the jury were subsequently set aside - those opinions discuss the law on this point in detail.

I don't mean to imply that there are not rulings to the contrary, of course - just that there are a number of interesting opinions by local judges on this topic, which provide a very useful analysis of how In re Seagate works, and in what types of cases it eliminates willful infringement claims as a matter of law.

Full post as published by Eastern District of Texas Federal Court Practice on February 12, 2010 (boomark / email).