March 2, 2016 – Ethicon Endo-Surgery petitioned the Federal Circuit for an en banc rehearing of a January panel ruling upholding a PTAB decision that invalidated a patent on a surgical stapler challenged by Covidien LP. In its petition, Ethicon argued that it is a violation of due process to have the same PTAB panel decide to institute an inter partes review proceeding and then make the final decision about whether the patent is valid. Ethicon reasoned that Congress clearly intended the PTAB would have no role in deciding whether to institute inter partes reviews.
The patent at issue is U.S. Patent No. 8,317,070, titled “Surgical Stapling Devices that Produce Formed Staples having Different Lengths.” The case is captioned Ethicon Endo-Surgery, Inc. v. Covidien LP and is pending in the Federal Circuit, 2014-1771.
By: Christopher J. Stankus