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BOSTON � A Massachusetts U.S. district judge fined Medtronic Sofamor Danek Inc. and related companies $10 million for the behavior of its trial lawyers at Dewey & LeBoeuf while fighting a patent case brought by DePuy Spine Inc. Senior District Judge Edward F. Harrington also ordered Medtronic Sofamor, which makes spinal implant devices, to pay some of the plaintiffs’ attorney fees. Harrington ruled that the defendant would pay 15% of the fees from the time the U.S. Court of Appeals for the Federal Circuit issued a ruling on the patent claims in November 2006 through the jury verdict. In September 2007, a jury awarded $226.3 million plus interest to DePuy. DePuy Spine Inc. v. Medtronic Sofamor Danek Inc., No. 1:01-cv-10165 (D. Mass.). Medtronic Sofamor is a subsidiary of Minneapolis-based implantable biomedical device manufacturer Medtronic Inc. Raynam, Mass.-based DePuy makes spinal surgery devices and equipment. DePuy alleged that several Medtronic Sofamor products used during spinal surgery infringed on a patent DePuy licensed from another party. Blast from the bench In his Feb. 25 order, Harrington wrote that the defendants “demonstrated a failure to accept the claim construction governing this case” throughout the trial. Harrington also said Medtronic Sofamor’s infringement defense was apparently based “on an attempt to obscure, evade, or minimize,” the Federal Circuit’s construction of the patent in question. “The defendants prolonged the proceedings unnecessarily (thus unduly imposing upon the jury’s time), they sought to mislead both the jury and the Court, and they flouted the governing claim construction as set forth by the Federal Circuit,” Harrington wrote. He denied the plaintiffs’ requests for enhanced damages because of insufficient evidence of willfulness. Medtronic Sofamor’s attorneys at New York-based Dewey & LeBoeuf referred questions to Medtronic. Company spokeswoman Marybeth Thorsgaard noted that the company has already filed an appeal, and that Harrington’s order on enhanced damages and attorney fees is the last post-trial order in the district court case. Following the verdict, Harrington issued a permanent injunction order on Dec. 21, barring Medtronic Sofamor from making, using or selling the infringing devices. Thorsgaard also said the case was “vigorously defended” by Medtronic’s counsel and the company appreciates “the Court’s recognition that key issues were ‘well and properly litigated.’ “ Thorsgaard added, “Medtronic will ask on appeal for a determination that in this hard-fought case, that, indeed, all trial issues were properly litigated by Medtronic’s counsel.”

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