Ethicon argued that a US Patent and Trademark Board policy allowing the same panel to decide whether to accept a patent challenge for review and issue a final ruling on its validity violates due process. A split Federal Circuit panel disagreed and supported the patent board’s finding that Ethicon’s surgical staple patent is invalid.

Covidien argues that despite a previous court ruling under appeal that Ethicon infringed on several of Covidien’s patents, the company has continued to use those designs in their line of Harmonic Ace surgical products.

Comprehensive patent reform, which finally passed Congress last week after six years of debate, is likely to add new costs and uncertainties for device companies, but also important new opportunities for the most proactive of firms, patent attorneys say.