Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 1 of 33 PageID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ETHICON LLC, ETHICON ENDO-
`SURGERY, Inc., and ETHICON US, LLC,
`
`Plaintiffs,
`
`v.
`
`INTUITIVE SURGICAL, INC., INTUITIVE
`SURGICAL OPERATIONS, INC., and
`INTUITIVE SURGICAL HOLDINGS, LLC,
`
`Defendants.
`
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`
`C.A. No.
`
`JURY TRIAL DEMANDED
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiffs Ethicon LLC, Ethicon Endo-Surgery, Inc., and Ethicon US, LLC (collectively
`
`“Ethicon” or “Plaintiffs”) file this Complaint for patent infringement against Defendants
`
`Intuitive Surgical, Inc., Intuitive Surgical Operations, Inc., and Intuitive Surgical Holdings, LLC
`
`(collectively, “Defendants”), and allege as follows:
`
`Nature of the Action
`
`1.
`
`This is an action for infringement of United States Patent Nos 9,844,369 (“the 369
`
`Patent”), 7,490,749 (“the 749 Patent”), 8,602,288 (“the 288 Patent”), 8,602,287 (“the 287 Patent”)
`
`and 9,326,770 (“the 770 Patent”) (collectively, “the Asserted Patents”) under the United States
`
`Patent Laws, 35 U.S.C. § 1 et seq.
`
`2.
`
`Ethicon brings this action against Defendants because of their systematic
`
`infringement of Ethicon’s valuable patent rights. In addition to seeking damages for Defendants’
`
`infringement of Ethicon’s patent rights, Ethicon seeks to enjoin Defendants’ continued
`
`infringement.
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`1
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`IS 1007
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 2 of 33 PageID #: 2
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`The Parties
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`3.
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`Plaintiff Ethicon LLC (f/d/b/a as Ethicon Endo-Surgery, LLC) is a limited liability
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`company organized under the laws of the State of Delaware, having its headquarters and principal
`
`place of business at 475 Street C, Los Frailes Industrial Park, Guaynabo, PR 00969.
`
`4.
`
`Plaintiff Ethicon Endo-Surgery, Inc. is a corporation organized under the laws of
`
`Ohio having its headquarters and principal place of business at 4545 Creek Road, Cincinnati, OH
`
`45242.
`
`5.
`
`Plaintiff Ethicon US, LLC is a limited liability company organized under the laws
`
`of Texas having its headquarters and principal place of business at 4545 Creek Road, Cincinnati
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`45242. Ethicon US, LLC is a wholly-owned subsidiary of Ethicon Endo-Surgery, Inc.
`
`6.
`
`Ethicon is a leading designer, manufacturer, and provider of innovative medical
`
`devices for surgical procedures, including its ECHELON FLEX™ endocutters and ECHELON
`
`ENDOPATH™ reload cartridges.
`
`7.
`
`Defendant Intuitive Surgical Inc. is a corporation organized under the laws of the
`
`State of Delaware, with its principal place of business at 1266 Kifer Road, Building 101,
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`Sunnyvale, CA 94086.
`
`8.
`
`Defendant Intuitive Surgical Operations, Inc. is a privately held corporation
`
`organized under the laws of the State of Delaware, with its principal place of business at 1020
`
`Kifer Rd, Sunnyvale, CA 94086.
`
`9.
`
`Defendant Intuitive Surgical Operations, Inc. is a wholly-owned subsidiary of
`
`Defendant Intuitive Surgical, Inc.
`
`10.
`
`Defendant Intuitive Surgical Holdings, LLC is a limited liability company
`
`organized under the laws of the State of Delaware, with its principal place of business at 1020
`
`Kifer Rd, Sunnyvale, CA 94086.
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`2
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 3 of 33 PageID #: 3
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`11.
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`Defendant Intuitive Surgical Holdings LLC is wholly-owned by Defendant
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`Intuitive Surgical, Inc.
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`Jurisdiction and Venue
`
`12.
`
`This is an action for patent infringement arising under the United States Patent
`
`Act, 35 U.S.C. § 1, et seq. This Court has subject matter jurisdiction over Ethicon’s claims under
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`28 U.S.C. §§ 1331 and 1338(a).
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`13.
`
`This Court has personal jurisdiction over Defendants at least because each
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`Defendant is organized under the laws of the State of Delaware, and is thus a resident of
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`Delaware.
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`14.
`
`Venue is proper in this District under 28 U.S.C. § 1400(b) because Defendants
`
`reside in Delaware.
`
`The Asserted Patents
`
`15.
`
`The 369 Patent is titled “Surgical End Effectors with Firing Element Monitoring
`
`Arrangements” and was issued by the USPTO on December 19, 2017. Ethicon LLC is the owner
`
`by assignment of the entire right, title and interest in and to the 369 Patent. Ethicon LLC has
`
`exclusively licensed Ethicon Endo-Surgery, Inc. to sell products in the United States that would
`
`infringe the 369 Patent absent a license. Ethicon Endo-Surgery, Inc. has exclusively sublicensed
`
`that right to Ethicon US, LLC. A true and correct copy of the 369 Patent is attached hereto as
`
`Exhibit A.
`
`16.
`
`The 749 Patent is titled “Surgical Stapling and Cutting Instrument with Manually
`
`Retractable Firing Member,” and was issued by the USPTO on February 17, 2009. Ethicon LLC
`
`is the owner by assignment of the entire right, title and interest in and to the 749 Patent. Ethicon
`
`LLC has exclusively licensed Ethicon Endo-Surgery, Inc. to sell products in the United States that
`
`would infringe the 749 Patent absent a license. Ethicon Endo-Surgery, Inc. has exclusively
`
`3
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 4 of 33 PageID #: 4
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`sublicensed that right to Ethicon US, LLC. A true and correct copy of the 749 Patent is attached
`
`hereto as Exhibit B.
`
`17.
`
`The 288 Patent is titled “Robotically-Controlled Motorized Surgical End Effector
`
`System With Rotary Actuated Closure Systems Having Variable Actuation Speeds,” and was
`
`issued by the USPTO on December 10, 2013. Ethicon LLC is the owner by assignment of the
`
`entire right, title and interest in and to the 288 Patent. Ethicon LLC has exclusively licensed
`
`Ethicon Endo-Surgery, Inc. to sell products in the United States that would infringe the 288 Patent
`
`absent a license. Ethicon Endo-Surgery, Inc. has exclusively sublicensed that right to Ethicon US,
`
`LLC. A true and correct copy of the 288 Patent is attached hereto as Exhibit C.
`
`18.
`
`The 287 Patent is titled “Motor Driven Surgical Cutting Instrument,” and was
`
`issued by the USPTO on December 10, 2013. Ethicon LLC is the owner by assignment of the
`
`entire right, title and interest in and to the 287 Patent. Ethicon LLC has exclusively licensed
`
`Ethicon Endo-Surgery, Inc. to sell products in the United States that would infringe the 287 Patent
`
`absent a license. Ethicon Endo-Surgery, Inc. has exclusively sublicensed that right to Ethicon US,
`
`LLC. A true and correct copy of the 287 Patent is attached hereto as Exhibit D.
`
`19.
`
`The 770 Patent is titled “Surgical Instrument,” and was issued by the USPTO on
`
`May 3, 2016. Ethicon LLC is the owner by assignment of the entire right, title and interest in and
`
`to the 770 Patent. Ethicon LLC has exclusively licensed Ethicon Endo-Surgery, Inc. to sell
`
`products in the United States that would infringe the 770 Patent absent a license. Ethicon Endo-
`
`Surgery, Inc. has exclusively sublicensed that right to Ethicon US, LLC. A true and correct copy
`
`of the 770 Patent is attached hereto as Exhibit E.
`
`4
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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 5 of 33 PageID #: 5
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`Surgical Staplers and Endocutters
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`20.
`
`Ethicon designs and sells a variety of surgical stapling instruments, including
`
`endocutters. An endocutter is an instrument that both cuts and staples tissue. An endocutter can
`
`be used in place of traditional scalpel-and-suture techniques, and is therefore useful in a wide
`
`variety of surgical procedures. Endocutters are particularly useful in laparoscopic surgery (also
`
`referred to as minimally invasive surgery).
`
`21.
`
`Ethicon is a market leader in developing endocutter technology. Ethicon
`
`introduced its first endocutter in 1996. In 2011, Ethicon introduced to the market its first motor-
`
`powered endocutter—the ECHELON FLEX™ Powered ENDOPATH® Stapler. Ethicon’s motor-
`
`powered endocutters dramatically reduce the force required to operate an endocutter, thereby
`
`minimizing unwanted movement of the device during procedures that could result in increased
`
`tissue trauma. In 2014, Ethicon introduced its ECHELON FLEX™ Stapler with Gripping Surface
`
`Technology (GST), which greatly reduces tissue slippage while firing the stapler.
`
`22.
`
`Ethicon designs, manufactures, and sells several endocutter products, including
`
`both powered and non-powered endocutters. In addition, Ethicon offers endocutter products that
`
`produce staple lines of different lengths. For example, the ECHELON FLEX™ Powered Vascular
`
`Stapler produces a staple line that is approximately 35 mm long, and is designed for use in
`
`vascular applications. Ethicon’s ECHELON FLEX™ Powered ENDOPATH® Stapler is offered
`
`in models that produce a 45 mm or 60 mm staple line, and can be used in a variety of surgeries,
`
`including but not limited to thoracic, bariatric, and colorectal procedures. Ethicon’s 60 mm staple
`
`line endocutter products are the market leader for use in bariatric procedures.
`
`23.
`
`Defendants first released an endocutter, the EndoWrist Stapler 45, for the da Vinci
`
`Si surgical system in 2013. Defendants subsequently released an EndoWrist Stapler 45 and
`
`5
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 6 of 33 PageID #: 6
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`EndoWrist Stapler 30 for the da Vinci X and Xi surgical system. These products are the subject of
`
`a patent infringement action between Ethicon and Defendants pending in this Court (C.A. No. 17-
`
`871 (LPS) (CJB)). In July 2018, Defendants received FDA clearance to market the SureForm 60,
`
`which is a 60mm endocutter, in the United States for the da Vinci X and Xi surgical system. Upon
`
`information and belief, Defendants are currently making, using, offering for sale and selling the
`
`SureForm 60 in the United States. See https://www.intuitivesurgical.com/davinci-sureform-60/.
`
`Background of the Accused Products
`
`24.
`
`Da Vinci Surgical Systems. Defendants make, use, sell, offer for sale, and/or
`
`import products under the da Vinci Surgical System brand that includes surgical instrument
`
`technology. These products include, but are not limited to, the da Vinci X and Xi Surgical
`
`Systems, and other similar products that include the infringing features.
`
`25.
`
`SureForm 60 and SureForm 60 reloads. Upon information and belief,
`
`Defendants make, use, sell, offer for sale, and/or import the SureForm 60 endocutter in the United
`
`States. Defendants describe the SureForm 60 as a device that “when used with the compatible
`
`SureForm 60 reloads, delivers multiple rows of staples and transects the tissue along the middle of
`
`the staple line.” da Vinci Xi and da Vinci X SureForm 60 User Manual Addendum (hereinafter
`
`“SureForm 60 Manual”) at 9.
`
`26.
`
`The Accused SureForm 60, alone or in combination with the da Vinci Xi and X
`
`Surgical Systems, infringes the Asserted Patents. As a result of Defendants’ infringement and the
`
`threat of its continued infringement, Ethicon faces a substantial risk of irreparable harm.
`
`Count I – Infringement of the 369 Patent
`
`27.
`
`28.
`
`Ethicon incorporates by reference the allegations in paragraphs 1-26 above.
`
`Claim 22 of the 369 Patent states as follows:
`
`22. A surgical end effector, comprising:
`
`6
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 7 of 33 PageID #: 7
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`an elongate channel including a bottom including a proximal end and a distal end, the
`elongate channel being configured to operably support a staple cartridge therein;
`
` a
`
` firing element configured to translate between a first position adjacent the proximal end
`of the bottom of the elongate channel and an ending position adjacent the distal end of the
`bottom of the elongate channel, the firing element including a vertical portion and at least
`one laterally extending lower foot;
`
`an internal passage extending within the elongate channel and configured to receive the at
`least one laterally extending lower foot when the firing element moves between the first
`position and ending position;
`
` a
`
` proximal channel opening through the proximal end of the bottom of the elongate
`channel to facilitate viewing of the firing element therethrough when the firing element is
`in the first position, the proximal channel opening sized to receive therein the at least one
`laterally extending lower foot on the firing element; and
`
`means for guiding the at least one lower foot on the firing element out of the proximal
`channel opening into the internal passage upon initial application of a firing motion to the
`firing element.
`
`29.
`
`Upon information and belief, Defendants directly infringe at least claim 22 of the
`
`
`
`369 Patent under 35 U.S.C. § 271(a), either literally or under the doctrine of equivalents, by
`
`making, selling, offering to sell, using, and/or importing the SureForm 60 and SureForm 60
`
`Reloads for use with the da Vinci X and Xi surgical systems.
`
`30.
`
`The SureForm 60 includes a surgical end effector. The end effector includes a
`
`reload channel that has a proximal end and a distal end and the reload channel is configured to
`
`operably support a SureForm 60 Reload, which is a staple cartridge.
`
`7
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 8 of 33 PageID #: 8
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`SureForm 60 Manual at p. 11
`
`SureForm 60 Manual at p. 15
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`
`
`
`
`31.
`
`The SureForm 60 includes an I-beam, which is a firing element configured to
`
`translate between a first position adjacent the proximal end of the bottom of the reload channel
`
`and an ending position adjacent the distal end of the elongate channel.
`
`8
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 9 of 33 PageID #: 9
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`SureForm 60 Manual at p. 11
`
`
`
`32.
`
`Upon information and belief, the I-beam includes a vertical portion and at least one
`
`laterally extending lower foot, and the SureForm 60 includes an internal passage extending within
`
`the reload channel to receive at least one laterally extending foot of the I-beam when the I-beam
`
`moves between a first position and an ending position.
`
`https://www.intuitivesurgical.com/davinci-sureform-60/
`
`
`
`33.
`
`The SureForm 60 includes a proximal channel opening through the proximal end
`
`of the elongate channel to facilitate viewing of the I-beam therethrough when the I-beam is in the
`
`9
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 10 of 33 PageID #: 10
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`first position, and the proximal channel opening is sized to receive therein the at least one laterally
`
`extending lower foot of the I-beam.
`
`SureForm 60 Manual at p. 34
`
`
`
`34.
`
`Upon information and belief, the SureForm 60 includes means for guiding the at
`
`least one lower foot on the I-beam out of the proximal channel opening into the internal passage
`
`upon initial application of a firing motion.
`
`10
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 11 of 33 PageID #: 11
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`35.
`
`Defendants’ infringement of the 369 Patent has injured Ethicon in its business and
`
`property rights. Ethicon is entitled to recovery of monetary damages for such injuries pursuant to
`
`35 U.S.C. ¶ 284 in an amount to be determined at trial.
`
`36.
`
`Defendants’ infringement of the 369 Patent has caused irreparable harm to Ethicon
`
`and will continue to cause such harm unless and until their infringing activities are enjoined by
`
`this Court.
`
`37.
`
`38.
`
`Count II – Infringement of the 749 Patent
`
`Ethicon incorporates by reference the allegations in paragraphs 1-26 above.
`
`Claim 1 of the 749 Patent states as follows:
`
`1. A surgical instrument, comprising:
`
` handle assembly;
`
` a
`
`
`an end effector for performing a surgical operation, said end effector operably coupled to
`said handle assembly and operably supporting a firing member that is movable from a
`retracted position to a fired position in response to a longitudinal firing motion applied
`thereto;
`
` a
`
` firing drive supported by said handle assembly and configured to selectively generate
`said longitudinal firing motion upon actuation of a firing trigger operably coupled to said
`handle assembly; and
`
` a
`
` retraction assembly supported by said handle assembly and interfacing with said firing
`drive such that manual actuation of said retraction assembly causes said firing drive to
`generate a sole retraction motion which is communicated to said firing member to cause
`said firing member to move from said fired position to said retracted position.
`
`39.
`
`Upon information and belief, Defendants directly infringe at least claims 1 and 3
`
`
`
`of the 749 Patent under 35 U.S.C. § 271(a), either literally or under the doctrine of equivalents, by
`
`making, selling, offering to sell, using, and/or importing the SureForm 60 and SureForm 60
`
`Reloads for use with the da Vinci X and Xi surgical systems.
`
`40.
`
`The SureForm 60 used with the da Vinci system is a surgical instrument.
`
`11
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`

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`41.
`
`The SureForm 60 includes a handle assembly. For example, the SureForm 60
`
`includes a housing that is held when using the Manual Release Knob to open the jaws and when
`
`installing the SureForm 60 onto the Instrument Arm.
`
`
`
`
`
`SureForm 60 Manual at p. 15
`
`
`SureForm 60 Manual at p. 17
`
`
`12
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 13 of 33 PageID #: 13
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`
`
`SureForm 60 Brochure at p. 3
`
`
`
`42.
`
`The SureForm 60 includes an end effector for performing a surgical operation
`
`(staple and cut tissue) that is operably coupled to the handle assembly.
`
`
`
`SureForm 60 Manual at p. 11
`
`
`
`43.
`
`The SureForm 60 includes an end effector that operably supports an I-beam that is
`
`movable from a retracted position to a fired position in response to a longitudinal firing motion
`
`applied thereto.
`
`13
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`

`

`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 14 of 33 PageID #: 14
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`SureForm 60 Manual at p. 11
`
`
`
`44.
`
`Upon information and belief, the SureForm 60 includes a firing drive supported in
`
`the handle assembly for selectively generating a longitudinal firing motion upon actuation of a
`
`firing trigger operably coupled to the handle assembly.
`
`SureForm 60 Manual at p. 19
`
`
`
`45.
`
`The SureForm 60 includes a retraction assembly supported by the handle assembly
`
`that interfaces with the I-beam such that actuation of the Manual Release Knob causes the firing
`
`14
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`

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`drive to generate a sole retraction motion that is communicated to the I-beam to cause the I-beam
`
`to move from the fired position to the retracted position.
`
`
`
`SureForm 60 Manual at p. 33
`
`
`
`46.
`
`The SureForm 60 includes a grip motion for opening and closing the jaws to grasp
`
`tissue. Upon information and belief, the grip motion is implemented via a drive supported in the
`
`handle assembly that generates opening and closing motions.
`
`15
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 16 of 33 PageID #: 16
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`SureForm 60 Manual at p. 9
`
`SureForm 60 Manual at 19
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`
`
`
`
`47.
`
`Upon information and belief, the SureForm 60 includes an elongate shaft assembly
`
`that is configured to transfer the opening and closing grip motions, firing motion, and the manual
`
`retraction motion.
`
`48.
`
`Defendants’ infringement of the 749 Patent has injured Ethicon in its business and
`
`property rights. Ethicon is entitled to recovery of monetary damages for such injuries pursuant to
`
`35 U.S.C. ¶ 284 in an amount to be determined at trial.
`
`49.
`
`Defendants’ infringement of the 749 Patent has caused irreparable harm to Ethicon
`
`and will continue to cause such harm unless and until their infringing activities are enjoined by
`
`this Court.
`
`50.
`
`51.
`
`Count III – Infringement of the 288 Patent
`
`Ethicon incorporates by reference the allegations in paragraphs 1-26 above.
`
`Claim 10 of the 288 Patent states as follows:
`
`10. A surgical tool for use with a robotic system that has a tool drive assembly
`that is operatively coupled to a control unit of the robotic system that is operable
`by inputs from an operator, said surgical tool comprising:
`
` surgical end effector comprising at least one component portion that is
`selectively movable between first and second positions relative to at least one
`other component portion thereof; and
`
`
` a
`
`16
`
`

`

`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 17 of 33 PageID #: 17
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`an elongated shaft assembly operably coupled to said surgical end effector, said
`elongated shaft assembly comprising:
`
`
`an axially movable portion in operable communication with said at least one
`selectively movable component portion of said surgical end effector; and
`
` a
`
` rotatably movable portion in operable engagement with said axially movable
`portion wherein an initial rotation of said rotatably movable portion causes
`said axially movable portion to move said selectively movable component
`portion of said surgical end effector from said first position into an
`intermediate position at a first rate, wherein a subsequent rotation of said
`rotatably movable portion in a same direction causes said axially movable
`portion to move said selectively movable component portion of said surgical
`end effector from said intermediate position to said second position at a
`second rate, and wherein said first rate is greater than said second rate.
`
`
`52.
`
`Upon information and belief, Defendants directly infringe at least claim 10 of the
`
`288 Patent under 35 U.S.C. § 271(a), either literally or under the doctrine of equivalents, by
`
`making, selling, offering to sell, using, and/or importing the SureForm 60 and SureForm 60
`
`Reloads for use with the da Vinci X and Xi surgical systems.
`
`53.
`
`The SureForm 60 and SureForm 60 Reloads used with the da Vinci X and Xi
`
`surgical systems is a surgical tool for use with a robotic system. The da Vinci X and Xi surgical
`
`systems include a tool drive assembly that is operatively coupled to a control unit operable by
`
`inputs from an operator:
`
`
`Xi Patient Cart with Instrument Arms
`
`Xi Surgeon Console
`
`
`
`17
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 18 of 33 PageID #: 18
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`54.
`
`The SureForm 60 includes a surgical end effector that comprises a reload channel
`
`that is selectively moveable between first and second positions relative to the anvil. The
`
`SureForm 60 also includes an elongate shaft assembly operably coupled to the surgical end
`
`effector.
`
`SureForm 60 Manual at p. 11
`
`
`
`55.
`
`The SureForm 60 includes an axially moveable portion that comprises an I-beam,
`
`which is in operable communication with at least the reload channel of the end effector.
`
`18
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 19 of 33 PageID #: 19
`
`SureForm 60 Manual at p. 11
`
`
`
`
`https://www.intuitivesurgical.com/davinci-sureform-60/
`
`
`
`56.
`
`Upon information and belief, the SureForm 60 includes a rotatably moveable
`
`
`
`portion in operable engagement with the I-beam wherein an initial rotation of the rotatably
`
`moveable portion causes the I-beam to move the reload from a first position into an intermediate
`
`position at a first rate to grasp tissue.
`
`SureForm 60 Manual at p. 9
`
`
`
`19
`
`

`

`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 20 of 33 PageID #: 20
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`SureForm 60 Manual at 19
`
`
`
`57.
`
`Upon information and belief, a subsequent rotation of the rotatably moveable
`
`portion in the same direction causes the I-beam to move the reload channel from the intermediate
`
`position to a second position at a second rate to clamp tissue.
`
`SureForm 60 Manual at p. 19
`
`
`
`58.
`
`Upon information and belief, the first rate of movement of the reload channel
`
`during the grip motion is greater than second rate of movement of the reload channel during the
`
`clamp motion.
`
`59.
`
`Defendants’ infringement of the 288 Patent has injured Ethicon in its business and
`
`property rights. Ethicon is entitled to recovery of monetary damages for such injuries pursuant to
`
`35 U.S.C. ¶ 284 in an amount to be determined at trial.
`
`60.
`
`Defendants’ infringement of the 288 Patent has caused irreparable harm to Ethicon
`
`and will continue to cause such harm unless and until their infringing activities are enjoined by
`
`this Court.
`
`61.
`
`62.
`
`Count IV – Infringement of the 287 Patent
`
`Ethicon incorporates by reference the allegations in paragraphs 1-26 above.
`
`Claim 13 of the 287 Patent states as follows:
`
`13. A surgical instrument, comprising:
`
`
`20
`
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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 21 of 33 PageID #: 21
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`an end effector comprising a firing element, wherein the firing element is
`configured to move along a firing path, and wherein the firing path comprises:
`
`
`an initial position; and
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`an end-of-stroke position;
`
`
`an electric motor, wherein the electric motor drives the firing element in a first
`direction along the firing path when the electric motor is rotated in a first
`rotational direction; and
`
` a
`
` control circuit for controlling the electric motor, wherein the control circuit is
`configured to switch between a plurality of operational modes during rotation of
`the electric motor in the first rotational direction, and wherein the plurality of
`operational modes comprises:
`
`
`a first operational mode, wherein the control circuit operates in the first
`operational mode when the firing element is positioned within a first range of
`positions along the firing path, wherein the first range of positions is
`positioned between the initial position and a second range of positions, and
`wherein a first amount of current is supplied to the electric motor during the
`first operational mode; and
`
` a
`
` second operational mode, wherein the control circuit operates in the second
`operational mode when the firing element is positioned within the second
`range of positions along the firing path, wherein the second range of positions
`is positioned between the first range of positions and the end-of-stroke
`position, wherein a second amount of current is supplied to the electric motor
`during the second operational mode, and wherein the second amount of
`current is greater than the first amount of current.
`
`
`63.
`
`Upon information and belief, Defendants directly infringe at least claims 13 and 15
`
`of the 287 Patent under 35 U.S.C. § 271(a), either literally or under the doctrine of equivalents, by
`
`making, selling, offering to sell, using, and/or importing the SureForm 60 and SureForm 60
`
`Reloads for use with the da Vinci X and Xi surgical systems.
`
`64.
`
`The SureForm 60 and SureForm 60 Reloads used with the da Vinci X and Xi
`
`surgical systems is a surgical instrument.
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`21
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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 22 of 33 PageID #: 22
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`65.
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`The SureForm 60 includes an end effector comprising an I-beam, wherein the I-
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`beam is configured to move along a firing path, wherein the firing path comprises an initial
`
`position and an end-of-stroke position:
`
`SureForm 60 Manual at p. 11
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`
`
`https://www.intuitivesurgical.com/davinci-sureform-60/
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`
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`66.
`
`The SureForm 60 used with the da Vinci X and Xi system includes an electric
`
`motor. The electric motor is coupled to at least one the rotary discs to drive the I-beam in a first
`
`direction when electric motor is rotated in a first rotational direction. The screenshots below
`
`illustrate I-beam movement in a first direction.
`
`22
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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 23 of 33 PageID #: 23
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`
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`
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`https://www.intuitivesurgical.com/davinci-sureform-60/
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`Upon information and belief, the SureForm 60 used with the da Vinci X and Xi
`
`
`
`67.
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`system includes a control circuit for controlling the electric motor to switch between a plurality of
`
`operational modes during rotation of the electric motor in the first rotational direction.
`
`SureForm 60 Manual at p. 19
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`
`
`
`23
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 24 of 33 PageID #: 24
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`SureForm 60 Manual at p. 21
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`Upon information and belief, when the I-beam is between the initial position and a
`
`
`
`68.
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`second range of positions along the firing path shown in the screenshots below, the control circuit
`
`for controlling the motor operates in a first operational mode and a first amount of current is
`
`supplied to the electric motor.
`
`
`https://www.intuitivesurgical.com/davinci-sureform-60/
`
`
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`69.
`
`Upon information and belief, when the I-beam is between the second range of
`
`
`
`positions and an end-of-stroke position along the firing path shown in the screenshots below, the
`
`control circuit for controlling the motor operates in a second operational mode and a second
`
`amount of current is supplied to the electric motor, wherein the second amount of current is
`
`greater than the first amount of current.
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`24
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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 25 of 33 PageID #: 25
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`
`
`
`https://www.intuitivesurgical.com/davinci-sureform-60/
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`
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`70.
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`Upon information and belief, the control circuit controls the electric motor to rotate
`
`in a second rotational direction different from the first rotational direction to move the I-beam in a
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`second direction along the firing path shown in the screenshots below. The second direction
`
`(proximal) is different from the first direction (distal).
`
`
`
`
`https://www.intuitivesurgical.com/davinci-sureform-60/
`
`
`
`71.
`
`Defendants’ infringement of the 287 Patent has injured Ethicon in its business and
`
`property rights. Ethicon is entitled to recovery of monetary damages for such injuries pursuant to
`
`35 U.S.C. ¶ 284 in an amount to be determined at trial.
`
`72.
`
`Defendants’ infringement of the 287 Patent has caused irreparable harm to Ethicon
`
`and will continue to cause such harm unless and until their infringing activities are enjoined by
`
`this Court.
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`73.
`
`74.
`
`Count V – Infringement of the 770 Patent
`
`Ethicon incorporates by reference the allegations in paragraphs 1-26 above.
`
`Claim 9 of the 770 Patent states as follows:
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`25
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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 26 of 33 PageID #: 26
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`9. A surgical fastening instrument, comprising:
`
`an end effector cartridge assembly, comprising:
`
`
`a first jaw;
`
` a
`
` second jaw, wherein said first jaw is movable relative to said second jaw
`between an open position and a closed position;
`a fastener cartridge body; and
`
`a plurality of fasteners removably stored in said fastener cartridge body;
`
` handle comprising an actuator;
`
` a
`
` a
`
` firing member, wherein said actuator is configured to impart a firing motion to
`said firing member to eject said fasteners from said fastener cartridge body; and
`
`an electronic lockout system configured to permit said actuator to apply said
`firing motion to said firing member when said end effector cartridge assembly is
`in an unlocked firable condition and to prevent said actuator from applying said
`firing motion to said firing member when said end effector cartridge assembly is
`not in said unlocked firable condition.
`
`75.
`
`Upon information and belief, Defendants directly infringe at least claims 9, 10 and
`
`12 of the 770 Patent under 35 U.S.C. § 271(a), either literally or under the doctrine of equivalents,
`
`by making, selling, offering to sell, using, and/or importing the SureForm 60 and SureForm 60
`
`Reloads for use with the da Vinci X and Xi surgical systems.
`
`76.
`
`The SureForm 60 and SureForm 60 Reloads used with the da Vinci X and Xi
`
`surgical systems is a surgical fastening instrument.
`
`SureForm 60 Manual at p. 9
`
`
`
`77.
`
`The SureForm 60 includes an end effector cartridge assembly comprising an anvil
`
`and a reload channel, wherein the reload channel is movable relative to the anvil between an open
`
`and a closed position.
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`26
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 27 of 33 PageID #: 27
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`SureForm 60 Manual at p. 11
`
`SureForm 60 Manual at p. 11
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`
`
`
`
`78.
`
`The SureForm 60 includes a reload channel in which SureForm 60 Reloads are
`
`installed. A SureForm 60 Reload is a fastener cartridge body in which a plurality of fasteners are
`
`stored.
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`27
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`

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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18 Page 28 of 33 PageID #: 28
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`SureForm 60 Manual at p. 15
`
`SureForm 60 Manual at p. 13
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`
`
`
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`79.
`
`The SureForm 60 includes a handle. For example, the SureForm 60 includes a
`
`housing that is held when using the Manual Release Knob to open the jaws and when installing
`
`the SureForm 60 onto the Instrument Arm.
`
`SureForm 60 Manual at p. 15
`
`
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`28
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`Case 1:18-cv-01325-UNA Document 1 Filed 08/27/18