Instant karma's gonna get you, Gonna knock you right on your head
You better get yourself together, Pretty soon you're gonna be dead
What in the world you thinking of, Laughing in the face of love
What on earth you tryin' to do, It's up to you, yeah you.
As recent as December, 2010 Minsurg the company that markets and sells the TruFuse for use in facet fusion surgery sued a number of named defendants who sell competing systems. Minsurg sought a preliminary injunction against its competitors. During the evidentiary hearing, Minsurg argued that selling a product that can be used in a "patented method" constituted infringement. Upon listening to the argument. Magistrate Judge Jenkins denied the motion. The decision to deny the motion turned on how important "minimally invasive" was.
Minsurg owns U.S. Patent No. 7,708,761 better known as the "761" patent which protects a method for performing spinal surgery. The "method" employed insertion of a portal vis-a-vis an MIS opening, accessing the joint space via the portal, insertion of the drill bit, removal of the drill bit, insertion of the dowel or plug, insertion of the tamp, tamping the dowel or plug into place, and removing the tamp.
Legally, Minsurg needed to establish that it was likely to succeed on its merits, would suffer irreparable harm, and the public interest would be best served by granting the injunction. The major obstacle was that the "761" patent protects a method of performing surgery. The defendants argued that they were not the surgeons, nor were they performing surgery. Minisurg claimed that the defendants infringed on the patent, actively induced their customers to practice the method and thereby contributed to the infringement. The bottom line; to establish an act of direct infringement one must practice the method. Fortunately for the defendants, they were not performing surgery.
The court did not agree with Minsurg that its competitors induced their customers to infringe on the method. The court's rationale was that if the surgeons were not utilizing an MIS approach for implantation, and that the implantation of the competitors implants was via an open incision, the competitors were not infringing upon the patented method. In addition to the court's rationale, the onus was on Minsurg to prove that surgeons that had implanted competitors products had utilized an MIS approach, and since Minsurg had no evidence, they had no argument. In the end, it was much wasted capital and all to do about nothing. You know what the great John Lennon sang;
We all shine on, like the moon, and the stars and the sun, Well we all shine on, Come on and on and on and on..........