Ethicon’s petition for an en banc hearing was rejected 10-1 by the Federal Circuit after the J&J subsidiary appealed a final decision by the PTAB in its patent battle with Medtronic over surgical stapler patents.
Ethicon appealed a U.S. Patent and Trademark Office’s Patent Trial and Appeal Board final decision, arguing the decision was invalid because the same panel made both the threshold decision and the decision to conduct an inter partes review.
“The current practice of assigning the same PTAB panel to both institute and conduct an inter partes review is not only contrary to the statute, but has the taint of prejudgment,” Circuit Judge Newman wrote in the June 22 dissenting opinion.
In March 2013, Covidien asked the U.S. Patent & Trademark Office for an inter partes review of 14 patent claims covering surgical stapling devices that produce formed staples having different lengths.
Following a challenge by Medtronic, a federal appeals court upheld in January the patent board’s decision to invalidate some claims in J&J’s surgical stapler patent.