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Acumed v. Stryker: eBay v. MercExchange Revisited

By Robert E. Alderson, Jr. and Paul Dennis Connuck

In Acumed LLC v. Stryker Corp., 551 F.3d 1323 (Fed. Cir. 2008), the Federal Circuit affirmed the grant of a permanent injunction enjoining Stryker from making and selling a putatively infringing orthopedic nail product. In so deciding, the Federal Circuit declined to articulate a bright-line rule governing the grant of permanent injunctions in patent infringement actions. Nevertheless, the Acumed decision is instructive with respect to how the courts may apply the rule of eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) in patent infringement cases and the facts that may be adduced to secure ' or defeat ' the grant of injunctive relief.

Those who review the facts of Acumed may be surprised by the court's affirmance of the injunction in that action in view of the: 1) prior licenses granted by Acumed under the asserted patent, and 2) evidence that Acumed's product exhibited safety problems not associated with Stryker's accused, but “medically superior,” device. Indeed, in light of these facts, the Federal Circuit itself characterized the Acumed decision as a close one, “especially with regard to the [factors of] irreparable harm and lack of adequate remedy at law.” Acumed, 551 F.3d at 1332. Thus, if we are to draw any lesson from this decision, special attention must be paid to its facts.

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