Cincinnati-based EES filed the suit Wednesday in the U.S. District Court for Southern Ohio, accusing its Mansfield, Mass.-based rival of infringing U.S. patent 5,322,055 for a "Clamp Coagulator/Cutting System For Ultrasonic Surgical Instruments," covering " claims directed to ultrasonic surgical instruments for cutting, coagulating, grasping and blunt-dissecting tissue," according to court documents.
The case is interesting because the allegedly infringing device, Covidien’s Sonicision cordless ultrasound dissection device, isn’t even on the U.S. market yet. It won 510(k) clearance from the FDA in February, citing as predicate devices EES’ Harmony line of ultrasound cutters.
But Covidien has had prototypes of the device in circulation, providing demonstrations to surgeons ahead of its official launch, according to the lawsuit. That and the incipient Sonicision launch, which EES said it believes will occur during the first quarter of 2012, is enough to show infringement, the suit claims.
"Covidien was aware that Sonicision infringed the ‘055 patent by at least August 24, 2011," according to the suit. "Covidien has infringed the ‘055 patent, including at least claim 1, by making and using Sonicision in the United States and/or importing Sonicision to the United States.
"Covidien is not changing its course regarding its plans to commercially launch Sonicision despite knowledge of the ‘055 patent," according to the lawsuit. "Covidien’s currently infringing activities, preparatory actions for launch, and refusal to change course regarding its launch plans place EES under a reasonable apprehension that Covidien will infringe the ‘055 patent, including at least claim 1, upon Sonicision’s launch through its manufacture, use, importation, offer for sale, and/or sale of Sonicision."
The lawsuit seeks a judgment of infringement, an injunction barring further infringement, damages, interest and legal fees.