Judge Burke Denies Ethicon’s Motion for Expedited Discovery of Intuitive Surgical’s Endocutter Product

August 29, 2017 — On August 25, 2017, the United States District Court for the District of Delaware entered a redacted version of Magistrate Judge Burke’s Memorandum Order denying plaintiffs’ motion for limited expedited discovery, which had been originally entered on August 16, 2017.   Judge Burke opined that the Plaintiffs’ motion was not reasonable in timing or scope, because, inter alia, the motion “was filed less than one month after the Complaint, at a time when no Answer has been filed” and “[Plaintiffs have] not filed a motion for a preliminary injunction.”  Moreover, Plaintiffs were seeking discovery into a product that “has not [been] submitted . . . for 510(k) clearance by the FDA” and thus has not yet been made available for purchase.  The case commenced in June 2017, when Plaintiffs, Ethicon LLC, Ethicon Endo-Surgery, Inc., and Ethicon US, LLC, filed a patent infringement complaint against defendants, Intuitive Surgical, Inc., Intuitive Surgical Operations, Inc., and Intuitive Surgical Holdings, LLC.

The patents-at-issue are: United States Patent Nos. 9,585,658 (“Stapling Systems”), 8,479,969 (“Drive Interface for Operably Coupling a Manipulatable Surgical Tool to a Robot”), 9,113,874 (“Surgical Instrument System”), 8,998,058 (“Detachable Motor Powered Surgical Instrument”), 8,991,677 (“Detachable Motor Powered Surgical Instrument”), and 9,084,601 (“Detachable Motor Powered Surgical Instrument”).  The case is captioned: Ethicon LLC v. Intuitive Surgical, Inc., DED-1-17-cv-00871.

By: Chika Seidel