Antitrust Law Daily Wrap Up, ANTITRUST—D. Del.: Antitrust counterclaim in patent action bifurcated, stayed, (Apr 29, 2015)

By Linda O’Brien, J.D., LL.M.

The federal district court in Wilmington, Delaware has granted a motion to bifurcate and stay an antitrust counterclaim by a medical technology firm in an action brought by an intellectual property investment company, claiming that the firm and six other manufacturers infringed several patents it held relating to medical devices for spinal treatment (OrthoPhoenix, LLC v. DFine, Inc., April 28, 2015, Stark, L.).

In 2007, Medtronic plc, an Irish medical technology company, purchased Kyphon, a manufacturer and seller of spinal implants for procedures, such as kyphoplasty, and acquired approximately 500 patents relating to balloon kyphoplasty treatments.

In 2013, Medtronic assigned the patents to intellectual property investment company OrthoPhoenix, LLC. Subsequently, OrthoPhoenix filed suit against medical equipment manufacturers, DFine, Inc., Sintea, LLC, Soteira Inc., Osseon Therapeutics, Inc., Ascendx, Wright Medical Technology, Inc., and Stryker Corporation, alleging the companies were infringing on several patents related to balloon kyphoplasty—which is a procedure used to treat certain spinal fractures. Stryker filed an antitrust counterclaim against OrthoPhoenix and Medtronic and then moved to bifurcate and stay all discovery and proceedings that related solely to the counterclaim.

In granting the motion, the court found that, due to size and complexity of the case, the parties should focus on litigating the 15 patents-in-suit and the multiple accused products by various defendants. The antitrust counterclaim raises complex issues potentially requiring discovery beyond what is relevant to patent infringement and invalidity. While there may be considerable overlap between the antitrust and patent issues, there is likely to be substantial discovery that is related solely to the antitrust issues.

There also is a likelihood that a trial of patent infringement, patent validity, and antitrust issues may lead to jury confusion. Finally, the circumstances did not warrant departure from Federal Circuit general guidance that antitrust issues should be bifurcated in patent cases, the court concluded.

The case is No. 1:13-cv-01003.

Attorneys: Richard D. Kirk (Bayard, PA) for OrthoPhoenix LLC. Maryellen Noreika (Morris, Nichols, Arsht & Tunnell LLP) for DFine Inc. Anne Shea Gaza (Young, Conaway, Stargatt & Taylor LLP) for Stryker Corporation.

Companies: OrthoPhoenix, LLC; DFine, Inc.; Stryker Corporation

Cases: Antitrust DelawareNews