A Medical Device Daily

ArthroCare (Sunnyvale, California), a developer of minimally invasive surgical products, said that a U.S. Court of Appeals has affirmed, in part, a jury verdict in the company’s patent lawsuit against Smith & Nephew (S&N; London), though it did find one of the claims invalid.

Arthocare said the court rejected S&N’s challenges of two ArthroCare patents (U.S. Patent Nos. 5,697,882 and 6,224,592), affirming the jury’s verdict that all of the asserted claims of those two patents are valid and were infringed by S&N.

It said the court rejected ArthroCare’s claim for its U.S. Patent No. 5,697,536), stating that the claim had no “substantial evidence” to support it.

In addition, the court ruled a procedural error in S&N’s antitrust counter-claim. As a result, the federal appeals court ruled that “because the district court must reconsider that counterclaim on remand, the permanent injunction against S&N must be vacated, pending the disposition of the antitrust counter-claim.”

Many of ArthroCare’s products are based on its Coblation technology, which uses low-temperature radio frequency to dissolve soft tissue. Its devices have been developed for sports medicine; spine/neurologic; ear, nose and throat; cosmetic; urologic and gynecologic procedures. The company competes with S&N in the orthopedics sector.

Xenogen (Alameda, California), a maker of imaging systems, said its answer to a patent infringement complaint filed by AntiCancer (San Diego). Concurrent with this filing, Xenogen filed counter-claims against AntiCancer claiming that it infringes two Xenogen patents.

On March 7, AntiCancer filed a lawsuit against Xenogen alleging infringement of five AntiCancer patents relating to fluorescence-based imaging. The complaint seeks damages and injunctive relief. Later in March, AntiCancer added another claim alleging that one of Xenogen’s imaging patents, 5,650,135, is invalid.

In May, Xenogen filed its answer to the amended complaint, denying all of the allegations and asserting various defenses, including its position that AntiCancer’s patents – including some of the patents cited in its complaint, and patent claims relating to in vivo imaging of fluorescence – are invalid.

With the filing of its answer to AntiCancer’s complaint, Xenogen filed its own counter-claims, alleging that AntiCancer infringes two of its U.S. patents relating to in vivo imaging.

The two companies are also involved in litigation that began in 2001. In that lawsuit, AntiCancer alleges five causes of action against Xenogen: trade libel, defamation, intentional interference with contract, intentional interference with prospective economic advantage and unfair competition.

In this lawsuit, a trial has been set for September.