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Medtronic, NuVasive Spar Over Surgical Patents in Jury Trial

Medtronic Inc. and NuVasive Inc., makers of medical devices for spinal surgery, are each seeking to convince a San Diego federal jury that the other infringed patents relating to products used in minimally invasive surgeries.

Warsaw Orthopedic Inc., a unit of Minneapolis-based Medtronic, accuses San Diego-based NuVasive of infringing three patents for implants capable of being inserted translaterally between adjacent vertebrae, a plate and screw system used to stabilize vertebrae in the cervical spine and a tissue retractor, according to court filings.

Medtronic lawyer Luke Dauchot told jurors in his opening statement today that the company’s damages are “substantial” and that a financial expert will present one option for calculating lost profits at $200 million and “another that is even much higher than that.”

“Yes, it’s a lot,” Dauchot said. “But the damages are strictly, strictly limited to the loss of profits.”

NuVasive alleges that another Medtronic unit, Medtronic Sofamor Danek USA, infringes its patent for a nerve monitoring system for lateral spinal surgery, according to court filings.

NuVasive lawyer Frank Scherkenbach told jurors that NuVasive products don’t infringe the Medtronic patents. He said NuVasive’s technology is the product of independent development, was first put on the market in 2003 and soon “changed the face of spinal surgery.” He said that in 2003 Medtronic possessed no such technology.

‘We Didn’t Copy’

“We didn’t copy,” he said. “NuVasive copied nothing.”

He said Nuvasive’s devices became so successful that the small company which originated in an orthopedic surgeon’s garage became a target for the much larger Medtronic.

“They wanted in on this product,” he said.

U.S. District Judge Michael M. Anello is presiding over the trial.

The case is Medtronic Sofamor Danek USA v. NuVasive Inc., 3:08-cv-1512, U.S. District Court, Southern District of California (San Diego).

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