Facts

Kirkland represented Biedermann Motech GmbH in a 35 U.S.C. section 146 appeal of an interference proceeding in the U.S. District Court for the District of Columbia. The interference before the Board of Patent Appeals and Interferences involved Stryker Spine's '460 patent for a spinal fixation device issued in December 2005, and Biedermann's '431 patent application filed in January 2004, titled "Bone screw" and assigned to Depuy Spine Inc. as the exclusive licensee of the application.

After the Board entered judgment against Stryker in April 2008, Stryker filed this § 146 action against Biedermann and its exclusive licensee, DePuy. The court granted defendants' motion for summary judgment on Stryker's allegation that one of the Administrative Patent Judges (APJ) on the Board's panel was unconstitutionally appointed, determining that any constitutional defect in the initial appointment was cured.

The case proceeded to a bench trial on the issue of whether the Board erred by failing to redefine the interference count as two separate counts, one for the "intersecting axes" invention (represented by claim 1 of the '460 patent) and another for the "intersecting planes" invention (represented by claim 18 of the '460 patent).

PLAINTIFF'S CONTENTIONS:
Stryker alleged that the 'inventions' were patentably distinct, meaning that the claims did not render obvious the other claim when considered as prior art.

Result

The court held a two-day trial with testimony from defendants' and Stryker's expert witnesses in August 2010. In its November 15 opinion, based on Stryker's expert's testimony alone, the court concluded that Stryker's proposed interference counts were not patentably distinct and therefore the Board did not err in its declaration of a single interference count encompassing both claimed inventions. As all of Stryker's claims were contingent on a redefined interference, the court entered judgment for defendants Biedermann and Depuy.

Other Information

FILING DATE: Oct. 24, 2008.