A U.S. Court of Appeals panel today rejected Arthrex’s attempt to overturn a Patent Trial and Appeal Board ruling that two claims of an Arthrex patent on a surgical suture anchor are unpatentable. Smith & Nephew had challenged claims 10 and 11 of Arthrex’s patent ‘541, stating that the design was “obvious” based upon the designs described in previous patents.
Arthrex based its appeal on the fact that the patent board used different language than Smith & Nephew had used in its petition. U.S. District Court judges Timothy Dyk, Edward Chen and Kara Fernandez Stoll ruled that “the Board’s minor variation in wording” does not violate Arthrex’s procedural rights.
In an order written by Stoll, the court said that the patent board’s findings have substantial evidence support. “Arthrex has not articulated a cognizable constitutional challenge” to the patent board’s review, Stoll added.
Arthrex did not immediately respond to a request for comment.
The loss was the second blow to Arthrex in this part of a long-running patent spat with Smith & Nephew. In January 2018, a different appeals court panel found that claims 1 to 9 of the same ‘541 patent were invalid as well. The patent was granted in 2014.
In February 2017, Arthrex said it buried the hatchet on a 12-year-old dispute over patents covering suture anchors used in joint repair surgeries. Details on that settlement, which put to bed several lawsuits filed in federal court in Texas, were not disclosed.
The agreement followed a $17.4 million jury verdict for Naples, Fla.-based Arthrex in 2016, in which the U.S. District Court for Eastern Texas panel found that Smith & Nephew subsidiary ArthroCare infringed a pair of Arthrex patents. The infringement was willful, the jury found, opening the door to trebled damages.
Arthrex said at the time that it planned to pursue an injunction barring further manufacture and sales of the infringing devices, as well as further damages.
Smith & Nephew first sued Arthrex over suture anchors back in 2004, winning a $20.5 million judgment in June 2008. Although that verdict was overturned the next year, a new trial ended in an $85 million judgment for Smith & Nephew in 2011. After the case bounced from the district level to the U.S. Federal Circuit Appeals Court and back, the appeals court in March 2015 upheld the decision. In June of that year, Smith & Nephew said it received $99 million from Arthrex, including $4 million in costs and interest payments.
In November 2016, Arthrex asked the U.S. Supreme Court to review a $99 million loss to the British orthopedic and wound care giant.