Despite Non-Public Nature of Operating Room, Surgical Procedure May Qualify as Public Use

The court denied plaintiff's motion for summary judgment that its nerve stimulation patents were not invalid due to public use under 35 U.S.C. § 102(b) based on surgical procedures. "[Defendant] admits that 'medical procedures' are 'inherently non-public.' As a matter of common sense, an operating room is not in the 'public domain' and freely accessible, unlike the hospital itself. But the fact that an actor practices a method alleged to be an invalidating prior use within the confines of an operating room does not necessarily mean the method was not 'accessible to the public.'. . . [A]lthough there is no evidence that non-hospital staff or patients knew of or observed the rapid pacing, [defendant] may be able to show by clear and convincing evidence that the procedures were publicly accessible and not limited by an obligation of confidentiality to the cardiologists. [Plaintiff] does not prove that these individuals were under any obligation of confidentiality, whether implied, express, or ethically imposed."

Medtronic Inc. v. Edwards Lifesciences Corporation, et. al., 8-12-cv-00327 (CACD September 17, 2013, Order) (Selna, J.)