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Damages dispute against Zimmer Biomet subsidiary headed to SCOTUS

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Marilyn Odendahl for www.theindianalawyer.com

A wholly owned subsidiary of Zimmer Biomet in Warsaw, Indiana, will be arguing it should not have to pay about $248 million in a patent infringement case scheduled to be heard by the Supreme Court of the United States.

The justices granted the petition for a writ of certiorari Oct. 19 but have not scheduled a date for oral arguments. The case, Stryker Corp. v. Zimmer, Inc., 14-1520, has been consolidated with Halo Electronics, Inc. v. Pulse Electronics, Inc., 14-1513.

At issue will be the circumstances under which a court can increase the damages awarded in a patent infringement lawsuit. A federal jury found Zimmer had willfully infringed and awarded Stryker $70 million in lost profits.

The U.S. District Court for the Western District of Michigan awarded treble damages and allowed for Stryker to collect reasonable attorney fees. But the U.S. Court of Appeals for the Federal Circuit reversed the enhanced damages and award of attorney fees.

Stryker filed a suit against Zimmer in December 2010 for infringing on three patents related to the pulse lavage device. This surgical tool is used to clean out wounds and remove dead tissue from wound sites. Stryker developed a portable, battery-powered, hand-held version which was an improvement over the other models that were bulky, had to be wheeled from one hospital room to another, and required a centralized power source.

According to the District Court, Zimmer’s place in the pulse lavage device market was significantly hurt by Stryker’s new device so it handed an independent contractor a copy of the tool with the instructions to “Make one for us.”

Subsequently, Zimmer introduced its competing product into the market and was fairly successful in luring customers away from Stryker.

In November 2012, the District Court granted Stryker’s motion for summary judgment of infringement on two of the patents and on all but one claim element in the third patent. Following the jury’s verdict, the District Court ordered treble damages.

It found enhancement of the jury’s award was warranted, in part, because Zimmer did not present any evidence that it investigated the scope of Stryker’s patents; Zimmer needlessly delayed producing the requested information about its application for the patent of its own device; and Zimmer did not take any remedial action to stop its infringement but did attempt to prevent Stryker from discovering certain aspects of its infringement before trial.

However, the U.S. Court of Appeals for the Federal Circuit reversed the willfulness finding and ruled that Zimmer had presented a reasonable defense as to each of the three patents-in-suit. The court summarily vacated the treble damages award and vacated and remanded the award of attorney fees.

In its petition for a writ of certiorari, Stryker argued the federal circuit imposed a rigid willfulness framework which undermines the deterrent effect of the Patent Act that allows for damages to be increased up to three times.

“…under the Federal Circuit’s rule, an adjudged infringer can copy a direct competitor’s pioneering invention in bad faith but escape punitive damages simply by engaging skilled counsel to advance an unsuccessful but ultimately credible defense argument on appeal…,” Stryker asserted.

The Supreme Court will only consider whether the federal Circuit improperly abrogated the plain meaning of 35 U.S.C. 284 by forbidding any award of enhanced damages unless there is a finding of willfulness under a rigid, two-part test.

LETTER TO THE EDITOR: CHARGES DMD DIRECTOR KELLY COURES IS RUDE

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TO THE EDITOR OF CCO:

I want to address a quote from DMD Director Kelley Coures that appeared in the Courier & Press that I find problematic. When referring to the ongoing revitalization of downtown he has been quoted as saying that he thinks that “one of the things the next City Council will have to do is find money to incentive construction of housing Downtown.”

I take exception to his comment in several ways. First, it is not the job of a department head to tell the elected officials what they “have” to do. It is the job of our elected leaders to tell the department heads what they are to do in the public interest. Mr. Coures has a reputation for being rude to the public, and the Mayor appears to have no objection to how “the little people” are treated.

The content of the quote is an even bigger sticking point for me. We have spent tens of millions of dollars to benefit the downtown area and will be paying that debt off for decades to come. We have all been told by the Mayor and Mr. Coures that those improvements will bring people back downtown to live. If that is true, and there is a market for middle-income housing in downtown, private development will handle that demand. We don’t incentivize subdivisions near the county line. We don’t need to because people want to live there. When people want to live downtown, builders will at least enjoy the fact that zoning will not be a problem and land prices are comparatively low, as well. Those and other natural incentives are nothing that City Council will have to “find.” I would also remind the gentlemen that if the hotel had not been so radically downgraded, there would be new apartments being built right now.

As the election draws near, I hope the voters will step back and take a long, hard look at how the interests of the entire city have been served by Lloyd Winnecke and his employees. I don’t believe that Evansville can withstand another four years of Winnecke, much less Kelley Coures.

Laura K. Blackburn

Courtney Coverdale named MVC Diver of the Week

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Purple Aces sophomore Courtney Coverdale was named the Missouri Valley Conference Diver of the Week in an announcement by the league on Tuesday afternoon.

 

The Danville, Ind. product had a stellar meet at the Indiana Intercollegiates, registering a pair of top five finishes.

 

Her highest score came in the 3-meter dive where she finished with a score of 265.95 on her way to a third place finish.  She grabbed another top five in the 1-meter event, taking 5th with a score of 244.75.

 

Coverdale and the rest of the Aces have this weekend off before returning to the pool on Oct. 31 versus Eastern Illinois.  The Aces and Panthers tangle at 1 p.m. inside Wyttenbach Pool.

 

Eagles return home after lengthy road trip

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University of Southern Indiana Volleyball returns to the Physical Activities Center Friday at 7 p.m. when it hosts the University of Indianapolis in its annual “Dig for the Cure” match. USI also hosts Saint Joseph’s College Saturday at 3 p.m. as well as Trevecca Nazarene University next Tuesday at 6 p.m.

 

USI (14-7, 4-5 GLVC) is coming off a nine-match road trip that saw it post a 4-5 record, including a 1-4 mark in Great Lakes Valley Conference play.

 

The Screaming Eagles picked up momentum last weekend as they went 3-0 at the Midwest Region Crossover, marking the second straight season USI has posted a perfect record at the event.

 

Senior middle blocker Abbey Winter (Germantown, Illinois) averaged 3.40 kills and 2.10 blocks to lead the Eagles at the Crossover. Winter was named to the All-Tournament team for her efforts.

 

USI also received solid efforts from freshman setter Erika Peoples (Bloomington, Illinois), junior outside hitter/middle blocker Amy Zwissler (Bloomington, Indiana), and sophomore middle blocker Te’Ayla Whitfield (Fort Wayne, Indiana).

 

Peoples averaged 10.40 assists per set on the weekend, while Zwissler had a career-high 17 kills and a .485 attacking percentage in USI’s four-set win over Wayne State University. Whitfield had seven kills, a .583 attacking percentage, and five blocks in USI’s three-set win over Northwood, then had five kills and a .333 attacking percentage in USI’s three-set victory over Lake Superior State University.

 

For the season, senior right side hitter Erica Oberbroeckling (Westfield, Indiana) leads the Eagles with 2.95 kills per set, while sophomore libero Shannon Farrell (Munster, Indiana) is averaging a team-high 4.75 digs per frame. Oberbroeckling also is averaging 2.95 digs and 0.52 blocks per frame.

 

Friday’s “Dig for the Cure” match will be dedicated to Cleta Kavanaugh, who is currently battling cancer. Cleta Kavanaugh is the mother of former USI standout Kristi Kavanaugh, a teammate and close friend of USI Head CoachLeah Mercer.

 

In addition to the “Dig for the Cure” match, the drawing for the $500 Campus Store shopping spree will take place between second and third sets Friday night. USI students with a valid ID can enter the drawing once more Friday night prior to the drawing.

 

GLVC Sports Network coverage for the matches can be accessed at GoUSIEagles.com.

 

Voyvodic and Pickens highlight second day at Dayton

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On the second and final day of the Dayton Flyer Invitational, it was Rick Voyvodic and Maria Pickens leading the way for the University of Evansville golf teams at NCR Country Club.

 

Pickens finished the second round with a score of 81, improving by five shots from her opening round total.  She finished the tournament with a 167 and tied for 57th overall.  Leading the women was Kayla Katterhenry, who also carded an 81 on Tuesday.  Her final score of 158 put her at 18 over par for the two rounds.  Katterhenry tied for 20th.

 

Second on the squad was Giulia Mallmann, who posted identical rounds of 83 to finish with a 166.  She tied for 50th.  Pickens was third on the team while Maggie Camp took fourth.  Camp lowered her round of 86 on Monday by four strokes, tallying an 82 on Tuesday.  She completed the event with a 168.  Madison Cheney was next up for the ladies, posting an 83 on her way to a final score of 174.

 

Carly Waggoner played as an individual and improved by nine shots between the first and second days.  She totaled 85 strokes in the final round and completed the tournament with a 179.  Rachel Marchi shot a 94 in each round to finish with a 188.

 

Indianapolis and Grand Valley State finished atop the team standings with scores of 610.  Indianapolis was credited with the victory due to their fifth player being ranked higher.  Kasey Petty of Findlay held on for the victory.  Her 4-over 75 in the final round saw her win by one stroke over a tie for second place.  As a team, the Aces finished in 12th place.

 

Rick Voyvodic led the way for the men’s squad on Tuesday, notching a 74 to finish in a tie for 20thplace with a 2-round score of 153.  That came on the heels of a 79 in the first round.  He finished the tournament two shots ahead of Tyler Gray, who registered a 77 in the final round to finish with a 155.  He tied for 32nd.

 

One behind him was the duo of Will Knights and Wil Pahud.  They each totaled a 156 in the event.  Knights’ rounds checked in at 80 and 76 while Pahud’s totals were 75 and 81.  Joseph Addante rounded out the top five with a 163.

 

Individual Jon Pick took four shots off of his opening-round score.  After notching an 87 on Monday, Pick recorded an 83 in the final round to finish with a 170.

 

Wil Wittman and Austin Winings finished atop the leaderboard with scores of 146, just four over par.  Wittman was medalist after defeating Winnings in a 1-hole playoff.  His efforts also lead Detroit to the team win.  They notched a 598 to finish five shots ahead of second-place Oakland.  Evansville took 7th place.

 

For the men, this marked their final tournament of the fall while the women will host the Braun Intercollegiate on Monday and Tuesday at Oak Meadow Country Club in Evansville.

 

Daily Off Topic Forum October 21, 2015

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OFFICIAL STATEMENT BY JACK SCHRIBER CONCERNING HIS POLITICAL FUTURE

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Nearly 40 years ago, I had an improper relationship with a young man. It was wrong, and I have grieved over this since that time. Earlier this year, I was asked by a police liaison to Holly’s House to help this person in the healing process by writing a letter to that person. It is my understanding that this is sometimes common in such situations. I was willing to do that, and in good faith and with the understanding that this matter would be kept confidential, I wrote that letter. That letter was not kept confidential.

Evansville is my home, and it is a place I truly love. I have tried to serve the community my entire life. Unfortunately, I have become a distraction to an important political election for our city. That is not fair to the wonderful men and women who enter the arena and seek public office. So today I am suspending my campaign for City Council At-Large. While it is too late to withdraw from the ballot, if elected, I will not serve and I will leave the selection of my replacement to a caucus.

Finally, and most importantly, I want to apologize to my wife, Sue, to my family, to my friends and colleagues, and to my supporters. I am sorry for any heartache I may have caused you.

Sincerely,

Jack Schriber

VANDERBURGH COUNTY FELONY CHARGES

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SPONSORED BY DEFENSE ATTORNEY IVAN ARNAEZ.
 DON’T GO TO COURT ALONE. CALL IVAN ARNAEZ @ 812-424-6671.

 Below is a list of felony cases that were filed by the Vanderburgh County Prosecutor’s Office on Monday, Oct. 19, 2015.

Carl James Hubbard Dealing in cocaine, Level 2 felony

Possession of marijuana, Class B misdemeanor

Joshua Edward Neal Unlawful possession of a firearm by a serious violent felon, Level 4 felony

Possession of methamphetamine, Level 6 felony

Unlawful possession of a syringe, Level 6 felony

Resisting law enforcement, Class A misdemeanor

Melissa Ann Maynard Theft, Level 6 felony

Brian Anthony Rodgers Operating a vehicle as a habitual traffic violator, Level 6 felony

Theft, Level 6 felony

Possession of methamphetamine, Level 6 felony

For further information on the cases listed above, or any pending case, please contact Whitney Riggs at 812.435.5688 or via email at wriggs@vanderburghgov.org.

EVSC Opportunities for Advanced Learning Fair Planned Oct. 28

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The EVSC has planned an event to help area families of eighth graders, as well as other students, to learn about the wide variety of opportunities that are available in the EVSC.  The EVSC High School Advanced Learning Fair will be Oct. 28, from 5-7 p.m., at the Southern Indiana Career & Technical Center, 1901 Lynch Road.

               Enrollment for high school starts in November for eighth grade students. In addition to the traditional eighth grade nights at the high schools, this fair will give families the opportunity to explore options made possible through the EVSC’s innovative model programs and schools, and to talk with teachers and current students in the programs.  Students can take part in one of the programs and still maintain their allegiance to their home high school and participate in athletics and other extra-curricular activities, as the models are half-day programs.  EVSC’s newest high school, New Tech Institute and the Virtual Academy, will also be represented at the fair.

Informational Booths will be available throughout the entire event. Individual program presentations are planned at the following times:

·        Medical Professions Academy – 5:15 p.m.

·        Early College High School – 5:30 p.m.

·        Randall T. Shepard Leadership and Law Academy – 5:45 p.m.

·        International Baccalaureate Diploma Programme – 6 p.m.

·        Southern Indiana Career & Technical Center – 6:15 p.m.

·        New Tech Institute – 6:30 p.m.

·        EVSC Virtual Academy – 6:45 p.m.

Additional information is available online at www.evscschools.com/advancedlearning or call 812-435-EVSC.

USI Women’s and Chamber choirs perform Fall Concert

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The USI Women’s Choir and USI Chamber Choir will perform at 3 p.m. Sunday, October 25, in the second floor reading room of the David L. Rice Library.

 The performance will include works by Paul Basler, Anton Bruckner, Sergei Rachmaninoff, Ola Gjeillo and many more.  The concert also will feature alumnus Rachel Luttrull playing the French Horn.

The USI Women’s Choir and Chamber Choir are both conducted by Daniel R. Craig, associate professor of music.

Admission is free and open to the public. For more information contact Daniel Craig at dcraig@usi.edu or 812-464-1736.

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