Only 10 years have passed without a resolution since Covidien ($COV) first sued Ethicon Endo-Surgery for patent violations in the Harmonic line of ultrasonic surgical tools. The tale took another twist Tuesday, June 24, when the Irish device maker once again sued the Johnson & Johnson ($JNJ) division for patent infringement and requested that the U.S. District Court for the District of Connecticut prevent sales of the recently launched Harmonic Ace+7 for sealing vessels during surgery.
The federal court sided with Covidien in 2013, and ordered J&J to pay $176.5 million in damages. The judge determined that Ethicon Endo-Surgery's Harmonic ultrasonic surgical devices violated three Covidien patents relating to surgical tools focused on enabling ultrasonic cutting and coagulation, but J&J is appealing the ruling.
The payment was based on 8% royalties for product sales over a certain period, including interest prior to the judgment. According to Law360, the rate reflects the fact that Ethicon's Harmonic products have been more successful than its other products that were not accused of patent violations.
Now, Covidien alleges that the latest Harmonic iteration continues to violate its patents. "The federal court in Connecticut has previously recognized the value of Covidien's intellectual property in this area and, with this new lawsuit, we will continue to vigorously protect both our innovations and intellectual property," said Covidien vice president and general counsel, Lawrence Weiss, in a June 24 statement.
By launching a new version of Harmonic while the previous decision is under appeal, J&J is taking a risk, for if it loses the appeal, its royalty bill would only increase, assuming the court leaves the 8% rate unchanged.
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