Press and Publications
October 28, 2010
By Craig Anderson
Daily Journal Staff Writer
In one of the largest trademark infringement verdicts of the year, a Los Angeles federal jury awarded $60 million to a Ventura-based surgical device company because a competitor used the name of its device on its own product.
The trial was a David and Goliath battle pitting Neurovision Medical Products Inc., a privately held device maker run by a physician and his sons, against NuVasive Inc., a $1.47 billion public company that makes products for surgical treatments to the spine.
Los Angeles-based attorneys with Browne Woods George, along with Andrew Kent of Rincon Venture Law Group in Westlake Village, represented Neurovision against a team of Morrison & Foerster attorneys led by Arturo Gonzalez, the San Francisco-based co-chairman of the firm’s litigation department.
On the fifth day of trial, the jury found Monday against NuVasive for willful infringement.
“We feel that justice was served in the case,” said Peter Ross, a Browne Woods George partner who was Neurovision’s lead trial counsel in the Central District of California case. Neurovision Medical Products, Inc. v. NuVasive, Inc., 09-6988
A $60 million verdict is unusually large in a trademark infringement case, and Ross expects NuVasive to appeal the verdict if U.S. District Judge Manuel Real does not overrule it.
“We believe strongly that we are the proper owners of the NeuroVision name and are confident that this will be resolved through the appeals process,” said Alex Lukianov, NuVasive’s chairman and chief executive officer, in a statement.
Ross said NuVasive registered the Neurovision mark with the U.S. Patent and Trademark Office in 2000 even though Neurovision founder J. Lee Rea invented it years before.
He said NuVasive engineers borrowed Neurovision’s device to develop its own device for use in spinal surgery, telling the Federal Drug Administration in an application that the devices were substantially similar, Ross said.
In the same year, NuVasive applied for a trademark registration on Neurovision for its device.
Rea never applied to register Neurovision as a trademark, but Ross said that did not matter because devices by the name were being used by hospitals.
“Trademark rights are established by usage,” the attorney said.
Morrison & Foerster’s legal team raised a host of objections during the trial, and complained that Real’s jury instructions were contrary to the law, according to Ross.
NuVasive also argued that the company did not make much money on the devices, saying that all but $2 million of its profits over the past decade were offset by the costs of manufacturing, shipping and sales.
Ross, however, questioned the legitimacy of those costs.
Neurovision also is seeking a permanent injunction barring NuVasive from using its name.
