STRYKER CORPORATION, STRYKER PUERTO RICO, LTD., STRYKER SALES CORPORATION, Plaintiffs-Appellees
ZIMMER, INC., ZIMMER SURGICAL, INC., Defendants-Appellants ZIMMER ORTHOPAEDIC SURGICAL PRODUCTS, Defendant
from the United States District Court for the Western
District of Michigan in No. 10-CV-1223, Judge Robert J.
Hwang, McAndrews, Held & Malloy, Ltd., Chicago, IL, for
plaintiffs-appellees. Also represented by Deborah Laughton,
P. Waxman, Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, DC, for defendants-appellants. Also represented
by THOMAS SAUNDERS; REBECCA A. Bact, Mark Christopher
Fleming, Boston, MA; Donald ROBERT Dunner, Finnegan,
Henderson, Farabow, Garrett & Dunner, LLP, Washington,
Prost, Chief Judge, NEWMAN and HUGHES, Circuit Judges.
case returns to us on remand from the Supreme Court of the
United States. Halo Elecs., Inc. v. Pulse Elecs.,
Inc., 136 S.Ct. 1923 (2016). In the original appeal,
Zimmer, Inc., Zimmer Surgical, Inc., and Zimmer Orthopaedic
Surgical Products (collectively "Zimmer") appealed
from the final judgment of the United States District Court
for the Western District of Michigan that U.S. Patent Nos. 6,
022, 329 ("'329 patent"), 6, 179, 807
("'807 patent"), and 7, 144, 383
("'383 patent") were valid and willfully
affirmed the jury's findings that the patents were valid
and infringed, and the jury's award of damages to
plaintiff-appellees Stryker Corporation, Stryker Puerto Rico,
Ltd., and Stryker Sales Corporation (collectively
"Stryker"). Stryker Corp. v. Zimmer, Inc.,
782 F.3d 649, 653 (Fed. Cir. 2014). However, applying the
then-controlling test for willful infringement and enhanced
damages under In re Seagate Technology, LLC, 497
F.3d 1360 (2007) (en banc), we reversed the jury's
willfulness finding and vacated the associated award of
treble damages and attorneys' fees. Stryker
Corp., 782 F.3d at 660-62.
petitioned for rehearing en banc, which this court denied.
Stryker then filed a petition for a writ of certiorari in the
Supreme Court. The Supreme Court granted certiorari to
determine whether the Seagate test regarding
willfulness and enhanced damages was consistent with the
Patent Act. Halo Elecs., Inc., 136 S.Ct. at 1928.
decision, the Supreme Court determined that the
Seagate test "unduly confines the ability of
district courts to exercise the discretion conferred on
them." Id. at 1935. Because we decided the
willfulness question under the Seagate framework,
the Supreme Court vacated our prior decision and remanded the
case for further proceedings. Id. at 1935-36.
remand, we recalled our mandate and reopened the case.
Because Halo was limited to the questions of
willfulness and enhanced damages, it left the judgments on
other issues undisturbed. For the reasons stated below, we
therefore reaffirm the jury's findings that Stryker's
patents were valid and infringed. In light of the new
willfulness standard articulated by the Supreme Court, we
also affirm the jury's finding of willful infringement.
However, we vacate and remand the district court's award
of treble damages. Finally, we vacate and remand the district
court's finding that this was an exceptional case and its
award of attorneys' fees.
patents at issue concern pulsed lavage devices. Pulsed lavage
devices deliver pressurized irrigation for certain medical
therapies, including orthopedic procedures and cleaning
wounds. The particular devices at issue in this case are
portable, battery powered, and handheld. They include both
suction and discharge tubes, so they both spray fluid from an
external source and also suction off fluid and debris. These
devices represent an improvement over older pulsed lavage
systems that required a central power source and external
mechanical pumps, which meant that they needed to be wheeled
around the hospital.
and Zimmer are the two main competitors in the orthopedic
pulsed lavage device market. Stryker began bringing
battery-powered, handheld pulsed lavage devices to the
marketplace in 1993. That same year, Stryker filed the
application which eventually gave rise to the patents at
issue. In February 2000, the first of these patents, the
'329 patent, issued. Later that year Stryker sued another
manufacturer, Davol Inc., for infringement. That suit settled
in 2001, and Davol took a license on the '329 patent. The
'807 patent subsequently issued in January 2001, and the
'383 patent issued in December 2006.
introduced its first portable pulsed lavage device, the
Var-A-Pulse, in 1996. In 1998, Zimmer began to develop a new
design, which came to market soon thereafter as the Pulsavac
Plus range of products. Zimmer's Pulsavac Plus products
achieved a peak of $55 million in annual sales in late 2007
before they were withdrawn from the marketplace due to a
product recall, after which sales resumed in December 2008.
2010, Stryker sued Zimmer, alleging that Zimmer's
Pulsavac Plus devices infringed various claims of the
'329, '807, and '383 patents. The district court
granted partial summary judgment in favor of Stryker, finding
infringement of the '807 and '383 patents'
asserted claims. The question of whether Zimmer infringed the
single asserted claim of the '329 patent, as well as
Zimmer's invalidity defenses against all of the asserted
claims, went to trial. The jury found that the products
infringed claim 2 of the '329 patent and that all of the
asserted claims were valid. The jury also awarded $70 million
in lost profits. It further found that Zimmer had willfully
infringed all three patents. The jury also found that Stryker
had marked substantially all of its products that
commercially embodied the patents-in-suit during the period
it sought damages, pursuant to 35 U.S.C. § 287(a).
August 2013, the district court issued an order rejecting
Zimmer's motions for judgment as a matter of law
("JMOL") on various issues, affirming the
jury's verdict, awarding trebled damages for willful
infringement, find- ing the case exceptional and thus
awarding attorneys' fees to Stryker, and imposing a
permanent injunction. The district court subsequently entered
final judgment pursuant to its order.
appeals. We have jurisdiction under 28 U.S.C. §
first to Zimmer's appeal on the issues of claim
construction, infringement, and validity.
construction is an issue of law based on underlying factual
considerations. Teva Pharm. USA, Inc. v. Sandoz,
Inc., 135 S.Ct. 831, 838 (2015). We review the district
court's ultimate construction de novo, and any underlying
factual determinations for clear error. Id. at
840-41. In construing a claim term, we look at the term's
plain and ordinary meaning as understood by a person of
ordinary skill in the art. Phillips v. AWH Corp.,
415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). There is an
exception to this general rule when a patentee sets out a
definition and acts as her own lexicographer. Thorner v.
Sony Computer Entm't Am., LLC, 669 F.3d 1362, 1365
(Fed. Cir. 2012). Infringement is a question of fact.
Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301,
1309 (Fed. Cir. 2009). Invalidity by reason of anticipation
under 35 U.S.C. § 102 is a question of fact. Atlas
Powder Co. v. Ireco, Inc., 190 F.3d 1342, 1346 (Fed.
Cir. 1999). Invalidity by reason of obviousness under 35
U.S.C. § 103 is a legal conclusion based on underlying
facts. Allergan, Inc. v. Sandoz Inc., 726 F.3d 1286,
1290 (Fed. Cir. 2013). Zimmer has the burden to prove
invalidity by clear and convincing evidence. Galderma
Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 736 (Fed.
issues of infringement and validity that the jury decided,
Zimmer appeals the district court's denials of its motion
for JMOL. Generally, a district court grants JMOL and sets
aside the jury's verdict if it "finds that a
reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue."
Fed.R.Civ.P. 50(a). We apply the law of the regional circuit
to our review of the district court's grant or denial of
a motion for JMOL. ClearValue, Inc. v. Pearl River
Polymers, Inc., 668 F.3d 1340, 1343 (Fed. Cir. 2012).
The Sixth Circuit reviews the district court's decision
on a motion for JMOL de novo. Barnes v. City of
Cincinnati, 401 F.3d 729, 736 (6th Cir. 2005).
"Judgment as a matter of law may only be granted if,
when viewing the evidence in a light most favorable to the
non-moving party, giving that party the benefit of all
reasonable inferences, there is no genuine issue of material
fact for the jury, and reasonable minds could come to but one
conclusion in favor of the moving party." Id.
reasons stated below, we affirm the district court's
judgment on the various defenses of noninfringement and
invalidity that Zimmer raises across the three asserted
patents. However, we ...