Earlier this month, Medtronic Inc. (Minneapolis) brought suit against NuVasive Inc. (San Diego), alleging that the company has infringed on 12 Medtronic patents in four product categories. Medtronic and NuVasive vie in the highly competitive $6.2 billion global market for spine surgery instruments, implants, and related devices. Medtronic, the world's largest pure-play medical device manufacturer, dominates the spine space with a 35–40% market share.

Medtronic has not issued any press release or official statement on its action. NuVasive says that it was not informed about the matter in advance of the filing and only became aware of it when the company received a copy of the complaint, which was filed in a San Diego court. In an Associated Press article, Medtronic spokesperson Mary Beth Thorsgaard commented that "Medtronic respects the patents of others and we expect others to respect our patents."

NuVasive chairman and CEO Alex Lukianov expressed confidence in his company's response to the suit. "It is not surprising that Medtronic would attempt to intimidate NuVasive with this suit, since NuVasive represents a growing threat to Medtronic's spine business," he said.

Lukianov said the company is in the process of reviewing the complaint and assessing its defenses. "Based on our initial review, we do not expect our existing operations to be significantly disrupted as we respond to this lawsuit." Suggesting the possibility of a countersuit, he said the company was analyzing the potential for action "based on our own significant patent portfolio and intellectual property rights."

NuVasive is among a number of emerging companies vying for market share in the spine sector. Medtronic recently acknowledged the challenge of such a competitive environment, telling investors that its market position in the spine sector "remains under pressure, primarily from the proliferation of smaller, privately held companies". In the most recent reporting period, Medtronic's spine sales increased by a respectable 8.1%, while revenues at NuVasive soared by 61%.

NuVasive and industry analysts questioned the timing of the Medtronic suit, noting that the allegedly infringing products have been on the market for several years. The company's product portfolio includes a minimally disruptive surgical platform called Maximum Access Surgery, in addition to other spine products focused on motion preservation.

Medtronic's spine division is headquartered in Memphis, TN, where it employs 1540. Spine unit sales for the fiscal year ending on April 25, 2008, were $2.98 billion, an increase of 23% over the year-earlier period. NuVasive, with 345 employees, posted 2007 revenues of $98.1 million, a 57% increase over 2006.

Other IP News in Brief

On August 13 of this year, Masimo and Shaklee filed a joint stipulation with the United States District Court for the Central District of California, dismissing their litigation. On August 22, Masimo and NIR followed with a similar action. The settlements were reached without Masimo incurring any liability to either Shaklee or NIR. None of the three parties had any official comment on their actions or the nature of their settlement.

According to Candela, the court's Markman order adopted interpretations favorable to the company on all claim terms in dispute in the litigation. "We remain confident in our position concerning Palomar's infringement of the patents at issue, and look forward to proceeding to trial," said Candela president and CEO Gerard Puorro.

Palomar has not officially commented on the case since the initial filing in December 2006. At that time, Palomar described Candela's action as a "defensive maneuver," since Palomar had filed suit against Candela for alleged patent infringement in August of that year. Of that action, Palomar president and CEO Joseph P. Caruso said, "Palomar's lawsuit against Candela is part of our ongoing patent enforcement strategy. The patents Palomar has asserted against Candela include the same patents that Palomar has successfully asserted against others with the same technology. We have received approximately $60 million to date from these efforts and intend to continue with this successful strategy."

Candela and Palomar manufacture products using light and laser technology to treat both medical and cosmetic conditions.

In a prepared statement, I-Flow said that Judge Dana Sabraw of the United States District Court for the Southern District of California interpreted the patent claims "in a manner consistent with I-Flow's position in the case."

I-Flow manufactures drug-delivery devices and surgical products for postsurgical pain relief and surgical-site care. Products include portable infusion pumps; catheters; kits used to administer local anesthetics directly to the wound site; and disposable infusion pumps used to administer chemotherapies, antibiotics, and other medications.

Apex Medical is an FDA-registered contract medical device manufacturer. The company has not commented on the case.

© 2008 Canon Communications LLC

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