Never-Ending Lawsuit…

A decade-long trade secret dispute between Heraeus and Zimmer Biomet is still going and going and….

On two separate continents, no less.

Heraeus Kulzer makes orthopedic bone cement. It’s based in Germany. In the 1970s, Heraeus provided its proprietary formula to Merck for it to distribute in Europe. In 1997, Heraeus began supplying this cement to a joint venture between Merck and Biomet. When the agreement between the parties terminated, Heraeus informed the Biomet Group that it was no longer allowed to distribute Heraeus bone cements.

Biomet-related companies developed their own bone cements.

Heraeus sued Biomet in 2008, alleging that Biomet misappropriated trade secrets when it developed its Refobacin and Biomet bone cements. In 2014, a German court of appeals enjoined Biomet from making or selling the cements and awarded more than 30 million euros in damages.

Both sides appealed. The German Supreme Court dismissed the appeals and Heraeus refiled its suit against Biomet, requesting that Zimmer Biomet relinquish its CE Mark approvals for its Refobacin and Biomet cements. Heraeus also filed a new suit against Zimmer Biomet, claiming 121.9 million euros in damages.

In 2017, Heraeus filed an enforcement action in Germany against Biomet Europe, requesting that a fine be imposed against Biomet Europe for failure to disclose the amount of the European Cements which Biomet Orthopaedics Switzerland had ordered to be manufactured in Germany.

The court dismissed Heraeus’ request.

Heraeus appealed.

Heraeus also filed suit against Zimmer Biomet Deutschland arguing that the continued use of the product names for its bone cements is misleading for customers and thus an act of unfair competition.

The court dismissed Heraeus’ request for an injunction prohibiting the marketing of the bone cements under their current names on the grounds that the same request had already been decided upon by an earlier court and their decision that had become final and binding.

Heraeus may choose to appeal this decision to the German Court of Appeals.

Heraeus filed a suit against one of Biomet’s suppliers, Esschem, in the U.S. District Court for Eastern Pennsylvania. That suit claimed that Biomet helped Esschem develop a pair of copolymers to make cements that competed with Heraeus products, using the trade secrets that it allegedly stole from the company.

Heraeus wanted to stop Esschem from selling the polymers to anyone. Heraeus sought punitive damages and legal costs. Zimmer Biomet agreed to indemnify Esschem for any liability.

The court granted Esschem’s motion for summary judgment and dismissed all of Heraeus’ claims with prejudice. Heraeus filed a notice of appeal to U.S. Court of Appeals for the Third Circuit, which heard oral argument on the appeal on October 23, 2018.

And on it all goes.

Forever pending.

A family of lawsuits set in cement, literally.