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Allez Spine Defeats J & J; Division in Suit

Irvine medical device maker Allez Spine LLC has prevailed in a patent infringement suit brought by Johnson & Johnson’s DePuy Spine Inc. of Massachusetts.

Earlier this month, a federal judge invalidated DePuy’s patent for screws that immobilize vertebrae in the spine to correct deformity or treat trauma.

DePuy, which licenses the patent from Germany’s Biedermann Motech GMBH, claimed that Allez Spine’s design for its screws infringed on its patent.

The court found that DePuy’s patent only protected a specific design that wasn’t broad enough to include those Allez Spine makes.

DePuy, which couldn’t be reached for comment, is expected to appeal.

The ruling could affect several other lawsuits DePuy filed against other screw makers under the same complaint, according to lawyers from Newport Beach’s Stradling Yocca Carlson & Rauth, which represented Allez Spine.

DePuy was bought by Johnson & Johnson in 1998 and is a part of its medical device and diagnostics group, which generated more than $20 billion in 2006 sales. Last year, DePuy itself generated about $4 billion.

Allez Spine isn’t in the same league as DePuy. It was formed in 2004 by several California spine surgeons who wanted to develop products for doctors. The company launched its Laguna Pedicle Screw System in 2005 and the Del Mar Monoaxial Pedicle Screw System the following year.

It is one of the latest companies DePuy targeted with ongoing patent litigation.

About six years ago, DePuy sued Minneapolis-based Medtronic Inc. over its Legacy, Vertex and Mas pedicle screws.

After an appeal, a jury found some Medtronic screws infringed on DePuy’s patents.

After that, DePuy filed two more suits: one against Carlsbad-based Alphatec Spine Inc. and the other against Allez Spine.

When DePuy hit Allez Spine with a lawsuit in June 2006, it hired Stradling, which had helped the company with business transactions and litigation in the past.

Lead trial lawyer Jan Weir and partners Steven Hanle and Jennifer Trusso had their work cut out after DePuy’s win in the Medtronic case.

“We didn’t allow the rulings in the previous litigation involving the patent dictate the defenses we put on,” Hanle said.

The lawyers decided to go after technical details of DePuy’s patent, bringing up discrepancies in the way it was written versus what the company argued in court.

Weir, Hanle and Trusso said they also brought up what they say were deficiencies in how the patent was drafted.

“This patent had been litigated for quite some time,” Trusso said. “With something like this, people think every stone is turned over and over again, but that’s not always the case. You have to sit back and look at it with new eyes and pay attention to things.”

The lawyers called this round’s win a step for small medical device companies, especially those owned by surgeons. DePuy could’ve gone after other small screw makers but targeted Allez Spine because of its business model, the lawyers contend.

“This industry has been historically owned by big device companies, and when a new business model comes into play where control is divested away from big devices to physician-owned companies, the big players feel threatened,” Weir said.

Weir, Hanle and Trusso successfully defended another small company against a big player in a patent infringement suit.

Earlier this year, they defended generic drug maker Amphastar Pharmaceuticals Inc. of Rancho Cucamonga in a patent infringement suit brought by France’s Sanofi-Aventis.

In that case, a federal judge invalidated Sanofi’s patent for Lovenox, a blood thinner used to fight blood clotting and heart attacks. Sanofi committed “inequitable conduct” to get its patent, the judge ruled.

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