By Eric Schweibenz
On May 28, 2019, Ethicon, LLC of Guaynabo, Puerto Rico, Ethicon Endo-Surgery, Inc. of Cincinnati, Ohio, and Ethicon US, LLC of Cincinnati, Ohio (collectively, “Ethicon”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Intuitive Surgical, Inc. of Sunnyvale, California, Intuitive Surgical Operations, Inc. of Sunnyvale, California, Intuitive Surgical Holdings, LLC of Sunnyvale, California, and Intuitive Surgical S. De R.L. De C.V. of Mexico (collectively, “Intuitive”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain laparoscopic surgical staplers, reload cartridges, and components thereof that infringe one or more claims of U.S. Patent Nos. 9,844,379 (“the ’379 patent”), 9,844,369 (“the ’369 patent”), 7,490,749 (“the ’749 patent”), 8,479,969 (“the ’969 patent”), and 9,113,874 (“the ’874 patent”) (collectively, “the Asserted Patents”).

According to the complaint, the Asserted Patents generally relate to a variety of laparoscopic surgical stapling instruments. In particular, the ’379 patent concerns a surgical stapling device that is configured such that a firing member cannot be advanced when a staple cartridge is not attached to the device. The ’369 patent concerns a surgical stapling device comprising a firing element, a closed channel configuration, and an end effector having a channel that supports a staple cartridge. The ’749 patent concerns a surgical stapling device comprising a firing element that moves from a retracted position to a fired position and a retraction assembly. The ’969 patent concerns a drive interface for coupling an articulating surgical tool to a robotic system. And the ’874 patent concerns a motor-powered surgical stapling system.

Regarding domestic industry, Ethicon states that a domestic industry exists in the United States in connection with its endocutter products that employ the technology protected by the Asserted Patents. In particular, Ethicon points to its ECHELON FLEX™ Powered Plus system and associated reloads, ECHELON FLEX™ Powered ENDOPATH® system and associated reloads, and ECHELON FLEX™ ENDOPATH® (non-powered) system and associated reloads, as domestic industry products.

In the complaint, Ethicon states that Intuitive imports and sells products that infringe the Asserted Patents. The complaint specifically refers to SureForm 60/45, SureForm 60/45 Reload, EndoWrist Stapler Xi 45/30, and EndoWrist Xi 45/30 Reload as infringing products.

As to related litigation, Ethicon states that it has previously filed a complaint against Intuitive in the U.S. District Court for the District of Delaware alleging infringement of the ’874 patent, the ’969 patent, U.S. Patent No. 8,991,677, U.S. Patent No. 8,998,058, U.S. Patent No. 9,084,601, U.S. Patent No. 9,585,658, and U.S. Patent No. 8,616,431. Ethicon further states that Intuitive challenged the ’874 and’969 patents in inter partes review proceedings.

With respect to potential remedy, Ethicon requests that the Commission issue a limited exclusion order and a cease-and-desist order directed at Intuitive.