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United States Court of Appeals for the Federal Circuit
September 22, 1988, Decided
Nos. 87-1445, 87-1446
[***1218] [*779] ARCHER, Circuit Judge.
The United States of America (government) appeals the judgment of the United States District Court for the District of Colorado in United States v. Telectronics, Inc., 658 F. Supp. 579, 3 USPQ2d 1571 (D. Colo. 1987), holding that Telectronics, Inc. and BGS Medical, Inc. (Telectronics) do not infringe U.S. Patent No. 3,842,841 ( '841). Telectronics cross-appeals the determinations that the '841 patent is not invalid under 35 U.S.C. § 112 (1982) and that Telectronics is not entitled to attorney fees under [**2] 35 U.S.C. § 285 (1982). 1 We reverse the district court's holding that the '841 patent is not infringed by Telectronics. The determinations that the patent is not invalid under section 112 and that Telectronics is not entitled to attorney fees are affirmed.
The '841 patent issued to Carl T. Brighton, et al. and was assigned to the United States. The patent resulted from work under contract between the Office of Naval Research and the University of Pennsylvania, where the inventors were employed. 658 F. Supp. at 581, 3 USPQ2d at 1571. The '841 patent is directed to a bone growth stimulator device for speeding the healing of fractures and other bone defects. The accused devices of Telectronics are marketed under the name OSTEOSTIM and include Model 2000 and earlier models S-12, HS-12 and XM-12. Zimmer, Inc. (Zimmer), a licensee of the government under the [**3] '841 patent, also markets a bone growth stimulator which the district court found to be "quite similar to the preferred embodiment of the invention shown in the patent." 658 F. Supp. at 581, 3 USPQ2d at 1571.
[*780] Normally bone fractures heal naturally as a result of the body's own reparative process. Approximately five percent of the time, however, natural healing does not occur and bone grafting is conventionally employed to attempt to stimulate further reparative growth. 658 F. Supp. at 581-82, 3 USPQ2d at 1572.
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857 F.2d 778 *; 1988 U.S. App. LEXIS 13542 **; 8 U.S.P.Q.2D (BNA) 1217 ***
UNITED STATES OF AMERICA, Plaintiff/Appellant, and ZIMMER, INC., Involuntary Plaintiff/Counterclaim-Defendant, v. TELECTRONICS, INC. and BGS MEDICAL, INC., Defendants/Counterclaim-Plaintiffs/Cross-Appellants
Prior History: [**1] Appealed from: U.S. District Court for the District of Colorado, Judge Matsch.
district court, anode, patent, tissue, specification, bone, fibrous, skin, electrodes, infringement, formation, fracture, literal, implanted, invention, surface, cathode, invalid, site, experimentation, stainless steel, stimulation, constant, skilled, living being, prior art, convincing, healing, matter of law, placement
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