Ethicon Faces Another Suit over Its Ultrasonic Shears

Covidien--recently much in the news owing to its impending merger with Medtronic--is accusing Johnson & Johnson subsidiary Ethicon Endo-Surgery of patent infringement in a lawsuit filed in U.S. District Court in Connecticut.

The lawsuit alleges that Ethicon's latest ultrasonic surgical product, the Harmonic ACE+7, infringes three Covidien patents. The same federal court found that these patents were valid and had been infringed in an earlier lawsuit relating to other Ethicon ultrasonic surgical products.

In March, Judge Janet Bond Arterton ruled that Ethicon Endo-Surgery infringed six claims in three patents held by Covidien's corporate predecessors, Tyco Healthcare and U.S. Surgical Corp., with products that included the Autosonix and LCS ultrasonic scalpels. According to court documents, Covidien's competing products included its Harmonic Shears.

Covidien "proved infringement of all asserted claims of the patents in suit" but failed to prove willful infringement, which closed the door on the possibility of triple damages. Covidien therefore wasn't entitled to lost profits damages or a preliminary injunction, Arterton wrote in the earlier case.

"[T]he evidence presented at trial shows that Tyco's and Ethicon's advanced energy products directly competed with each other," Arterton wrote. Covidien was awarded nearly $177 million in the March verdict, a finding that is currently under appeal.

"The federal court in Connecticut has previously recognized the value of Covidien's intellectual property in this area and, with this new lawsuit, we will continue to vigorously protect both our innovations and intellectual property," said Lawrence Weiss, vice president and general counsel, Surgical Solutions, Covidien, in a press release.

The new suit asks the court to enjoin Ethicon from continuing to make and sell the Harmonic ACE+7 device, and to grant damages for the patent infringement.

Stephen Levy is a contributor to Qmed and MPMN.