Ethicon Endo-Surgery, Inc. at al. v. Covidien LP et al. (16-cv-12556).

Judge Sorokin denied Covidien’s motion for a preliminary injunction that sought to bar sales of Ethicon’s Enseal® X1 Large Jaw Device, a surgical tool that allows a surgeon to grasp a vessel between two jaws, apply energy to the jaws to for a seal, and cut the now-sealed vessel. Prior to the introduction of this device, Covidien was the market leader in such instruments that used bipolar (or radiofrequency) energy to seal the vessel.  Since its introduction in March 2017, the X1 Large Jaw has generated $7.8 million in revenue.  Covidien contends that the X1 Large Jaw infringes U.S. Patent No. 8,241,284, which claims vessel sealing devices having non-conductive stop members that maintain a constant distance between the jaw surfaces along the length of the jaws.

Because Ethicon raised a substantial question of non-infringement, Covidien was unable to demonstrate a likelihood of success on the merits. Of interest, while both parties sought to have the claim terms given their plain and ordinary meaning, the parties disagreed as to what that meaning was, with Ethicon urging a meaning that took its product out of infringement.  Judge Sorokin determined that “Ethicon’s proposed meanings are at least sufficiently persuasive to raise a substantial question regarding the ‘plain and ordinary’ meanings of the relevant terms.”  In addition, Judge Sorokin found that Covidien failed to show a nexus between the claimed elements of the device and the success of the X1 Large Jaw.  Ethicon provided evidence that sales of the X1 device were driven by factors, such as better ergonomics, ease of use, availability of sealing separately from cutting, and price, that were unrelated to the claimed elements.   Accordingly, Covidien did not show irreparable harm “resulting from the alleged infringement.”

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