Tuesday, June 21, 2011

Smith and Nephew loses at CAFC, but a textual issue in the decision

The bottom line:

Because Smith and Nephew, Inc. (S&N) presented insufficient
evidence at trial to support a finding that the RetroBut-
ton® device infringed Claim 8 of U.S. Patent No. 5,645,588 (’588 patent),
we reverse.

That means Arthrex wins.

S&N failed to present any evidence that the Retro-
Button® device contained the claimed “graft connection
element comprising a sling member [a loop of material].”
Additionally, S&N offered no evidence that the “graft
connection element” included the equivalent of a “sling


We agree with Arthrex. S&N’s theory of infringement
is inconsistent with the plain language of Claim 8.


Therefore, Arthrex [sic !] has failed to
offer substantial evidence to support its accusation
the RetroButton® device infringes Claim 8. Because
there is no evidence of record supporting the jury’s verdict
that the RetroButton® infringes the ’588 patent, JMOL is
appropriate, and we must reverse.


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