Arthrex Inc v. P Tech LLC

1. Case Identification

• Case #: IPR2022-00717
• Patent #: 10,881,440
• Filed: March 31, 2022
• Petitioner(s): Arthrex, Inc.
• Patent Owner(s): P Tech, LLC
• Challenged Claims: 1-20

2. Patent Overview

• Title: Methods for Securing Body Tissues
• Brief Description: The ’440 patent discloses methods for repairing damaged tissues, such as torn rotator cuff tendons, by securing bone fragments with soft tissue attached. The method uses a flexible fastener inserted into a passage in a first bone portion, a two-component knotless fixation device inserted into a passage in a second bone portion, and an elongate member (e.g., suture) connecting them to compress and fixate the tissue.

3. Grounds for Unpatentability

Ground 1: Obviousness over Stone - Claims 1-5, 7, 9, and 15-19 are obvious over Stone

• Prior Art Relied Upon: Stone (Patent 7,905,903).
• Core Argument for this Ground:
  • Prior Art Mapping: Petitioner argued that Stone teaches a versatile tissue fixation method that discloses all elements of the independent claims. Stone’s flexible tubular sleeve (100) is the claimed “flexible fastener,” and its combination with a separate fixation member (200) constitutes the claimed “two component knotless fixation device.” Stone further teaches using an elongate strand (120) with two legs extending from the sleeve, deforming the sleeve by tensioning the strand to secure it in a bone passage, and passing the strand over soft tissue to the two-component device in a second bone passage.
  • Motivation to Combine (for §103 grounds): This ground is based on a single reference.
  • Expectation of Success (for §103 grounds): This ground is based on a single reference.

Ground 2: Obviousness over Stone and Dhawan - Claims 6 and 20 are obvious over Stone in view of Dhawan

• Prior Art Relied Upon: Stone (Patent 7,905,903) and Dhawan (a June 2012 article in the American Journal of Sports Medicine).
• Core Argument for this Ground:
  • Prior Art Mapping: This ground addresses dependent claims requiring the fixation device to be comprised of PEEK or PLLA. While Stone disclosed the structure of a two-component fixation device, it did not specify its material composition. Dhawan, a peer-reviewed article on suture anchors, expressly taught the use of bioabsorbable materials like PLLA and biologically inert polymers like PEEK for suture anchors in shoulder repair procedures.
  • Motivation to Combine (for §103 grounds): A POSITA seeking to implement Stone's method would combine its teachings with Dhawan to select a suitable, well-known material for the fixation member. Dhawan praised PLLA and PEEK anchors as safe, reproducible, and mechanically stable implants that were commercially available and successfully used, providing a clear motivation to use these materials for Stone’s anchor.
  • Expectation of Success (for §103 grounds): A POSITA would have a high expectation of success, as Dhawan confirmed thousands of such anchors were implanted annually with a "paucity of literature reports of complications."

Ground 3: Obviousness over ElAttrache and Stone - Claims 1-7, 9, and 15-20 are obvious over ElAttrache and Stone

• Prior Art Relied Upon: ElAttrache (Application # 2007/0191849) and Stone (Patent 7,905,903).

• Core Argument for this Ground:

  • Prior Art Mapping: Petitioner argued for the obviousness of combining elements from both references to perform a double-row rotator cuff repair. A POSITA would use Stone’s flexible sleeve fastener as the medial row anchor and ElAttrache’s two-component knotless fixation device (the Arthrex "SwiveLock" anchor) as the lateral row anchor. Suture legs would extend from the Stone fastener in the first bone passage (medial row), pass over the tendon, and be secured by the ElAttrache device in the second bone passage (lateral row).
  • Motivation to Combine (for §103 grounds): Both references are analogous art for suture-based, knot-reducing tissue repair. A POSITA would combine them to create a fully knotless double-row repair procedure. This substitution would eliminate all knot-tying, including at the medial row, providing a recognized benefit over the technique described in ElAttrache, which Petitioner argued was a simple substitution of one known element for another to achieve a predictable result.
  • Expectation of Success (for §103 grounds): A POSITA would expect success because the combination leverages known components for their intended functions to create an improved, fully knotless surgical procedure, a well-understood goal in the art at the time.

• Additional Grounds: Petitioner asserted further obviousness challenges combining Stone with Barber (a 2008 journal article) to teach the use of an "allograft collagen matrix scaffold" (claims 8, 10-13), and combining all three references (Stone, Barber, and Dhawan) for claim 14. A final ground combined ElAttrache, Stone, and Barber.

4. Key Claim Construction Positions

• "Passage" in a Bone: Petitioner noted that while the ’440 patent’s figures depict a single passage traversing the entire bone, the Patent Owner has asserted a broader construction in parallel litigation. For the purposes of the IPR only, Petitioner adopted the Patent Owner’s apparent litigation position that "passage" means any opening in a bone into which a device can be inserted. This construction allows for the use of two separate, non-traversing passages for the fastener and the fixation device, as taught by the prior art combinations.
• "Allograft Collagen Matrix Scaffold": Petitioner proposed that this term refers to a type of tissue graft made from collagen, sourced from the same species as the patient (allograft), which acts as a support structure to help regenerate tissue. This construction was provided to clarify the application of the Barber prior art, which discusses a commercial product ("GraftJacket") fitting this description.

5. Arguments Regarding Discretionary Denial

• Petitioner argued that discretionary denial under Fintiv would be inappropriate. The parallel district court litigation was in its earliest stages, as the answer was filed but no discovery had occurred and no trial timeline was set. Petitioner contended a trial was unlikely to occur before a Final Written Decision from the Board and stated its intent to seek a stay of the litigation pending the outcome of the IPR.

6. Relief Requested

• Petitioner requests institution of an inter partes review and cancellation of claims 1-20 of Patent 10,881,440 as unpatentable.