April 30, 2018 – In its ongoing dispute with Acantha LLC in 15-C-1257 (E.D. Wisc.), United States District Judge William C. Griesbach issued a decision and order on April 25, granting partial summary judgment to Defendant DePuy Orthopaedics to limit damages based on Plaintiff Acantha’s failure to mark its surgical products under 35 U.S.C. 287(a). While the products themselves were not marked, Acantha argued that listing the patent number in its surgical technique guides was enough to satisfy the requirements of 287(a). However, because these guides were not shipped with the surgical products, Judge Griesbach ruled that the guides could not be used to satisfy 287(a). Thus, damages were limited to actual notice of infringement on March 19, 2014. The patent at issue in this action is U.S. Patent No. RE43,008, entitled: “Orthopedic Implant Assembly.” The patent relates to an orthopedic implant for joining bone segments.
By: Frederick C. Millett