Covidien and Ethicon Stipulate to Dismissal of Claims Arising from Preliminary Injunction

November 10, 2015 – In a stipulated dismissal filed November 8, Covidien and Johnson & Johnson affiliate Ethicon Endo-Surgery agreed to release all claims and counterclaims relating to a preliminary injunction barring the sale of Ethicon’s ACE®+7 ultrasonic surgical shears.  The injunction issued last October and was reversed by the Federal Circuit in March.  Ethicon had claimed it was entitled to the full amount of a $5 million preliminary injunction bond posted by Covidien to recoup lost profits resulting from the injunction of almost $6 million.

In a parallel infringement suit between the parties involving the same patents, the Federal Circuit in December overturned a $176 million damages award to Covidien, holding that the patents in suit were obvious.  Covidien recently petitioned for Supreme Court review in that case, arguing that a failed prototype should not have been considered prior art.  In the stipulated dismissal filed on Monday, Covidien has reserved the right to reassert infringement of the patents in suit if its appeal to the Supreme Court is successful.

The patents-in-suit are U.S. Patent Numbers 6,063,050; 6,468,286; and 6,682,544.  The case is captioned Covidien Sales LLC et al. v. Ethicon Endo-Surgery Inc., case number 3:14-cv-00917, in the U.S. District Court for the District of Connecticut.

By: Sean C. McDonagh