Different Accused Devices Allows Patentees To Engage In Multiple Litigations

In a recent decision by the U.S. Court of Appeals for the Federal Circuit on application of claim preclusion, a patentee who choose not to add a device to a pending litigation was found to have preserved its right to have a second bite of the apple with regard to another accused device that was not "essentially the same" as the subject of the first trial. Acumed LLC v. Stryker Corp. et al., Case No. 07-1115 (Fed. Cir., May 13, 2008).

Acumed alleged that Stryker's T2 Proximal Humeral Nail infringed certain patent claims relating to orthopedic surgical equipment. During the discovery period, Acumed ascertained that Stryker had developed, but was not yet marketing, a longer version of the T2 nail. Approximately a year after filing the suit and four months after the close of fact discovery, Stryker began publicly marketing and selling a longer version of the accused T2 nail in the United States. A few