Rasmussen Instruments, LLC v. Depuy Synthes Products, Inc., Depuy Synthes Sales, Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RASMUSSEN INSTRUMENTS, LLC,
Plaintiff-Cross-Appellant
v.
DEPUY SYNTHES PRODUCTS, INC., DEPUY
SYNTHES SALES, INC.,
Defendants-Appellants
MEDICAL DEVICE BUSINESS SERVICES, INC.,
Defendant-Appellee
______________________
2023-1855, 2023-2399, 2023-1856, 2024-1047
______________________
Appeals from the United States District Court for the
District of Massachusetts in No. 1:20-cv-11807-TSH, Judge
Timothy S. Hillman.
______________________
Decided: October 6, 2025
______________________
K URT L OUIS G LITZENSTEIN, Fish & Richardson P.C.,
Boston, MA, argued for plaintiff-cross-appellant. Also rep-
resented by N ITIKA G UPTA F IORELLA, Wilmington, DE.
G REGORY A. CASTANIAS , Jones Day, Washington, DC,
argued for defendants-appellants and defendant-appellee.
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RASMUSSEN INSTRUMENTS, LLC v.
DEPUY SYNTHES PRODUCTS, INC.
2
Also represented by T RACY A. STITT ; CALVIN G RIFFITH ,
T HOMAS K OGLMAN, P ATRICK N ORTON, Cleveland, OH;
CHRISTOPHER M ORRISON, Boston, MA.
______________________
Before H UGHES , L INN, and CUNNINGHAM , Circuit Judges.
HUGHES , Circuit Judge.
This appeal arises from a patent infringement action in
the United States District Court for the District of Massa-
chusetts. Following trial, a jury found that DePuy infringed
U.S. Patent No. 9,492,180 but did not infringe U.S. Patent
No. 10,517,583. The district court granted in part and de-
nied in part subsequent motions for judgment as a matter
of law, for a new trial, and for various remedies and entered
final judgment consistent with the verdict.1 DePuy Syn-
thes Products, Inc. and DePuy Synthes Sales, Inc. appeal
both the final judgment of infringement of the ’180 patent
and the denial of its motion for judgment as a matter of law
on the issue of patent ownership, as well as the grant of
Rasmussen Instruments, LLC’s motions for various reme-
dies; Rasmussen Instruments, LLC cross-appeals, chal-
lenging the final judgment of non-infringement of the ’583
patent. Because we conclude that Rasmussen Instruments,
LLC lacked standing because it did not own either patent
at the time it filed suit, we vacate the district court’s final
judgment and remand for the district court to dismiss this
action for lack of jurisdiction.
1 The district court granted defendant’s motion for
judgment as a matter of law only as to the dismissal of one
of the defendants and denied all other claims. See Rasmus-
sen Instruments, LLC v. DePuy Synthes Prods., Inc., No.
CV 20-11807-TSH, 2023 WL 2711072, at *4 (D. Mass. Mar.
30, 2023).
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RASMUSSEN INSTRUMENTS, LLC v.
DEPUY SYNTHES PRODUCTS, INC.
3
I
In October 2020, Rasmussen Instruments, LLC
brought claims of infringement of two patents, U.S. Patent
Nos. 9,492,180 and 10,517,583, against DePuy Synthes
Products, Inc. and DePuy Synthes Sales, Inc. (collectively,
DePuy) in the United States District Court for the District
of Massachusetts. Both patents are directed to instruments
used during surgical installation of a knee replacement im-
plant. Both patents list Dr. G. Lynn Rasmussen,2 an ortho-
pedic surgeon, as the inventor.
In 1992, Dr. Rasmussen developed an instrument for
use during orthopedic surgery procedures. He called the
tool created based on his designs the “Zen Instrument.”
Dr. Rasmussen filed a provisional patent application on
the Zen Instrument in 2005 and a utility application in
2006.
In 2004, Dr. Rasmussen started working with Wright
Medical (Wright), an orthopedic company interested in
adding Dr. Rasmussen’s Zen Instrument to its replacement
knee system. In 2006, Dr. Rasmussen entered into a formal
agreement with Wright (hereinafter the 2006 Agreement)
in which he assigned his intellectual property rights in the
Zen Instrument to Wright. See J.A. 19136–49. Relevant
portions of the agreement are reproduced below:
1.3 Inventions. “Inventions” shall mean improve-
ments, modifications, enhancements, and later
variations made solely by [Dr. Rasmussen] or
jointly with others, including employees or agents
2 This case involves both Dr. Rasmussen, an ortho-
pedic surgeon, and Rasmussen Instruments, LLC, a com-
pany Dr. Rasmussen started in his name, of which he is the
only employee. J.A. 7. This opinion refers to Dr. Rasmus-
sen as Dr. Rasmussen and to Rasmussen Instruments,
LLC as Rasmussen.
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RASMUSSEN INSTRUMENTS, LLC v.
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4
of Wright which are related to the Product/Royalty
Product/Licensed Product and which may be em-
bodied in or related to the Product/Royalty Prod-
uct/Licensed Product or later modifications thereof,
whether patentable or not.
1.4 Know-How. “Know-How” shall mean all infor-
mation, data, materials, and other information con-
cerning or relating to the Product/Royalty
Product/Licensed Product, including, but not lim-
ited to, all technology, including implants, instru-
ments, surgical techniques, formulas, designs,
data, processes, prototypes, or specifications devel-
oped prior to or during the term of this Agreement
by [Dr. Rasmussen] and relating to the Prod-
uct/Royalty Product/Licensed Product.
J.A. 19136.
3.1 Disclosure of Know-How. [Dr. Rasmussen]
agrees to make available to Wright all Know-How
related to the Product and Licensed Product and to
cooperate with Wright in the further development
of the Product, Royalty Product and Licensed Prod-
uct. Furthermore, [Dr. Rasmussen] agrees that
[Dr. Rasmussen] shall promptly disclose to Wright
all future Know-How and Inventions received or
developed by [Dr. Rasmussen] relating to the Prod-
uct, Royalty Product and Licensed Product.
3.2 Ownership. The Parties acknowledge that
Wright shall be the sole owner of the Product, Roy-
alty Product and Licensed Product, including those
particular ideas contributed by [Dr. Rasmussen]
which are utilized in the Product, Royalty Product
and Licensed Product, and that Wright shall have
the obligation and right within its sole business
judgment to seek any patent or other proprietary
rights protection for the Product, Royalty Product
and Licensed Product as it may deem necessary or
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RASMUSSEN INSTRUMENTS, LLC v.
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desirable. [Dr. Rasmussen] hereby assigns to
Wright all of [Dr. Rasmussen’s] right, title, and in-
terest in the Know-How and Inventions, all docu-
mentation relating thereto and all patent,
trademark, trade secret, copyright, and other intel-
lectual property rights relating thereto. . . .
J.A. 19137–38. Exhibit D of the 2006 Agreement lists the
“ADVANCE® Intra-Operative Knee Tensioner” as the sole
“Licensed Product.” J.A. 19148. Dr. Rasmussen testified
that the “ADVANCE® Intra-Operative Knee Tensioner” is
the Zen Instrument. J.A. 13558–59.
In 2013, Dr. Rasmussen and Wright executed two
agreements to end their business relationship, a Settle-
ment Agreement and a Licensing Agreement. J.A.
19150–71. The Settlement Agreement purported to amend
the 2006 Agreement; most significantly, the Settlement
Agreement removed recitations in the 2006 Agreement of
the “Licensed Product” from all the sections reproduced
above. J.A. 19155–56. Further, the Settlement Agreement
“deleted in its entirety” Exhibit D from the 2006 Agreement
and replaced it with the term “RESERVED.” J.A. 19159.
While the 2006 Agreement as amended by the 2013 Settle-
ment Agreement retained language that assigned intellec-
tual property rights related to the Product and Royalty
Product from Dr. Rasmussen to Wright, see J.A. 19156,
there was no language in any of the agreements stating
that Wright was conveying any intellectual property rights
to Dr. Rasmussen. The License Agreement does not include
any language concerning patent assignment. See J.A.
19165–71.
Dr. Rasmussen later entered into discussions with
DePuy, and DePuy considered adding the Zen Instrument
to its instrument line. DePuy offered to license the Zen In-
strument; Dr. Rasmussen declined. In 2018, Dr. Rasmus-
sen and DePuy met again, and Dr. Rasmussen disclosed
his ideas for improvements to DePuy, but no joint venture
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RASMUSSEN INSTRUMENTS, LLC v.
DEPUY SYNTHES PRODUCTS, INC.
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between DePuy and Dr. Rasmussen resulted. Two years
later, in 2020, Dr. Rasmussen formed Rasmussen Instru-
ments, LLC and purported to assign the Asserted Patents
to the LLC. Rasmussen asserted both patents against
DePuy in October 2020.
The case proceeded to a fourteen-day jury trial between
February and March 2022. The court denied, without ex-
planation, DePuy’s opposed request that the verdict form
include a question on whether Rasmussen had proven own-
ership of the patents-in-suit. The jury returned a verdict
finding that DePuy willfully infringed the ’180 patent,
DePuy did not infringe the ’583 patent, and that neither
patent was invalid. The jury awarded Rasmussen $20 mil-
lion in damages. J.A. 1, 189. After trial, DePuy renewed its
JMOL motion, arguing Rasmussen had not proven owner-
ship of the patents-in-suit, direct infringement of the ’180
patent, or indirect infringement of the ’180 patent.3 J.A.
15501–33. The district court denied this motion. J.A. 8.
Rasmussen then moved for an award of enhanced treble
damages, attorneys’ fees, a prejudgment interest, and a
permanent injunction with respect to the accused DePuy
product that the jury had found infringed the ’180 patent.
J.A. 1. The court denied the motion as to enhanced dam-
ages and fees but granted it as to prejudgment interest and
a permanent injunction. J.A. 8.
The district court granted Rasmussen’s motion for a
permanent injunction on March 30, 2023, and entered final
3 DePuy also moved for a new trial, J.A. 15590–622;
we do not address this motion because it is unnecessary to
resolve the appeal. See Johns Hopkins Univ. v. Datascope
Corp., 543 F.3d 1342, 1349 (Fed. Cir. 2008) (“In view of our
disposition of the case [reversing the district court’s denial
of JMOL] we need not reach the issues of obviousness or
inequitable conduct nor consider defendant’s alternative
request for a new trial.”).
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RASMUSSEN INSTRUMENTS, LLC v.
DEPUY SYNTHES PRODUCTS, INC.
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judgment on the jury’s verdict on September 8, 2023. The
subsequent appeals, noticed on April 28, 2023, and Sep-
tember 12, 2023, respectively, were timely. See 28 U.S.C.
§ 2107(a); Fed. R. App. P. 4. We have jurisdiction to review
under 28 U.S.C. § 1295(a)(1).
II
Standing is a constitutional requirement under Arti-
cle III of the Constitution and presents a threshold juris-
dictional issue. Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992). In general, we “review de novo the district
court’s decisions regarding standing to sue.” Alfred E.
Mann Found. for Sci. Rsch. v. Cochlear Corp., 604 F.3d
1354, 1358 (Fed. Cir. 2010). “[T]o the extent [any] jurisdic-
tional facts are in dispute, however, the findings of fact are
reviewed for clear error.” Canadian Lumber Trade All. v.
United States, 517 F.3d 1319, 1330–31 (Fed. Cir. 2008) (in-
ternal citations omitted).
III
A court may exercise jurisdiction only if a plaintiff has
standing to sue on the date it files suit. Keene Corp. v.
United States, 508 U.S. 200, 207 (1993); see also Minneap-
olis & St. Louis R.R. Co. v. Peoria & Perkin Union Ry. Co.,
270 U.S. 580, 586 (1926) (“The jurisdiction of the lower
court depends upon the state of things existing at the time
the suit was brought.”). Thus, the first issue we must re-
solve is whether Rasmussen owned the Asserted Patents
at the time it filed suit; if not, it would not have had stand-
ing to bring the infringement action.
When the plaintiff is not the original patentee, a “criti-
cal determination” is whether the plaintiff holds a valid as-
signment. Lone Star Silicon Innovations LLC v. Nanya
Tech. Corp., 925 F.3d 1225, 1229 (Fed. Cir. 2019). A valid
assignment must (1) be made “by an instrument in writ-
ing,” 35 U.S.C. § 261, and (2) transfer the entire exclusive
patent right, an undivided interest in the patent rights, or
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RASMUSSEN INSTRUMENTS, LLC v.
DEPUY SYNTHES PRODUCTS, INC.
8
the entire exclusive right within any geographical region of
the United States. Diamond Coating Techs., LLC v. Hyun-
dai Motor Am., 823 F.3d 615, 618 (Fed. Cir. 2016). “The as-
signment of a patent’s legal title is interpreted in
accordance with contract statutes and common law in the
state where the assignment took place.” Schwendimann v.
Arkwright Advanced Coating, Inc., 959 F.3d 1065, 1072
(Fed. Cir. 2020). Under either Utah or Tennessee law,4 “[i]f
the language within the four corners of the contract is un-
ambiguous, the parties’ intentions are determined from the
plain meaning of the contractual language, and the con-
tract may be interpreted as a matter of law.” WebBank v.
Am. Gen. Annuity Serv. Corp., 54 P.3d 1139, 1145 (Utah
2002) (citation omitted); see Planters Gin Co. v. Fed. Com-
press & Warehouse Co., 78 S.W.3d 885, 890 (Tenn. 2002).
“Whether an ambiguity exists in a contract is a question of
law.” WebBank, 54 P.3d at 1145 (citation omitted); see
Planters Gin, 78 S.W.3d at 890. Only after it is determined
that ambiguity exists does the intent of the parties become
a question of fact that allows for the consideration of ex-
trinsic evidence. WebBank, 54 P.3d at 1145; Planters Gin,
78 S.W.3d at 890. DePuy contends that whether a plaintiff
is a patentee under 35 U.S.C. § 100(d) who may sue for in-
fringement is likewise a question of law, reviewed de novo.
Prima Tek II, L.L.C. v. A-Roo Co., 222 F.3d 1372, 1376–77
(Fed. Cir. 2000). Rasmussen claims DePuy should be es-
topped from seeking de novo review because it insisted that
ownership be resolved by the jury, disputing Rasmussen’s
position that ownership was an issue for the court.
4 The 2006 Agreement recites Tennessee Law as the
governing law of the contract. J.A. 19142. The 2013 Settle-
ment Agreement amends the governing law of the contract
to be Utah Law. J.A. 19158. Because the law of both states
raised by the parties are substantively the same, we need
not decide the issue of which state’s law applies. See Cross-
Appellant’s Opening and Response Br. 30 n.4.
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RASMUSSEN INSTRUMENTS, LLC v.
DEPUY SYNTHES PRODUCTS, INC.
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However, Rasmussen cites to its own contention that own-
ership is a factual issue and omits DePuy’s assertion dur-
ing trial that “[o]wnership is a question of law if it’s on
undisputed facts.” J.A. 14440. DePuy has consistently
taken the position that inventorship is a question of law,
but that the underlying facts in determining ownership
should be determined by a jury. De novo review of the issue
of ownership of the Asserted Patents is proper.
It is undisputed that Dr. Rasmussen attempted to con-
vey his rights in the Asserted Patents to Rasmussen In-
struments in 2020. However, for that transfer to have had
any effect, Dr. Rasmussen must have owned the patents at
that time. See Abraxis Bioscience, Inc. v. Navinta LLC,
625 F.3d 1359, 1367 (Fed. Cir. 2010) (“[T]he . . . IP Assign-
ment Agreement attempted to assign rights to existing pa-
tents, but was ineffective, because the assignor, AZ–UK,
did not own the patents at the time.”).
Dr. Rasmussen transferred ownership of both patents
to Wright in 2006, via a present-tense, “hereby assigns” in-
strument. J.A. 19138, § 3.2. The assignment was therefore
immediate, automatic, and self-executing. See, e.g.,
Speedplay, Inc. v. Bebop, Inc., 211 F.3d 1245, 1253
(Fed. Cir. 2000) (holding present-tense assignment lan-
guage “hereby conveys, transfers and assigns” meant the
assignee automatically obtained title to the patent with no
further act required). Section 3.2 of the 2006 Agreement,
reproduced above, provided that Wright became the “sole
owner” of the “Licensed Product,” and that Dr. Rasmussen
“hereby assigns to Wright all of [Rasmussen’s] right, title,
and interest in the Know-How and Inventions . . . and all
patent . . . and other intellectual property rights relating
thereto.” J.A. 19138. The “Licensed Product” is defined in
the agreement as the “ADVANCE® Intra-Operative Knee
Tensioner,” J.A. 19137, § 1.7.2; J.A. 19148, and Dr. Ras-
mussen testified that this was the formal name for his Zen
Instrument. J.A. 13558–59; see also J.A. 19138, § 3.3.
Dr. Rasmussen also assigned any after-acquired patents
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on this technology to Wright. J.A. 19136, § 1.3 (defining as-
signed “Inventions” as including “improvements, modifica-
tions, enhancements, and later variations . . . embodied in
or related to the . . . Licensed Product or later modifications
thereof, whether patentable or not”), § 1.4 (defining “Know-
How” as including “all information, data, materials, and
other information concerning or relating to the Prod-
uct/Royalty Product/Licensed Product, including, but not
limited to, all technology, including implants, instruments,
surgical techniques . . . developed prior to or during the
term of this Agreement by Consultant”).
Rasmussen alleged that it became a patentee by as-
signment from Dr. Rasmussen just before this suit was
filed. DePuy challenged that contention. It was Rasmus-
sen’s burden to establish that it was a “patentee”—an es-
sential prerequisite to have standing to bring its claim.
Sicom Sys., Ltd. v. Agilent Techs., Inc., 427 F.3d 971, 976
(Fed. Cir. 2005). Rasmussen never argued to the district
court that Wright ever explicitly assigned Dr. Rasmussen’s
IP back to him; Rasmussen instead argued only that when
Wright and Rasmussen unwound their business relation-
ship in 2013, a “nunc pro tunc”5 “restate[ment] and re-
cast[ing of] the parties[’] rights and obligations, retroactive
to the effective date of the 2006 Wright Agreement.” J.A.
13025–26. The two agreements between Rasmussen and
Wright made as part of this unwinding were the prior dis-
cussed Settlement Agreement, J.A. 19150–64, and License
Agreement, J.A. 19165–71. Neither agreement contained
any assignment of any patent rights back to Rasmussen;
the Settlement Agreement made amendments to the 2006
5 The phrase “nunc pro tunc” means “[h]aving retro-
active legal effect.” Diamond Coating Techs., 823 F.3d
at 621 n.6 (alteration in original) (quoting Nunc Pro Tunc,
Black’s Law Dictionary (10th ed. 2014)).
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Agreement but included specific assignments only from
Rasmussen to Wright. J.A. 19156, § 3.2.
On appeal, Rasmussen argues that Section 3.2 of the
2006 Agreement does not assign “intangible intellectual
property;” and that the assignment provision was not self-
executing. Cross-Appellant’s Opening and Response
Br. 29–35. We disagree. The 2006 Agreement’s language
recites that Dr. Rasmussen “hereby assigns to Wright all
of [his] right, title, and interest in the Know-How and In-
ventions, all documentation relating thereto and all patent,
trademark, trade secret, copyright, and other intellectual
property rights relating thereto,” which is self-executing at
the moment the language becomes effective; here, it went
into effect at the time the contract was signed. J.A. 19138,
§ 3.2; see Bd. of Trs. of the Leland Stanford Junior Univ. v.
Roche Molecular Sys., Inc., 583 F.3d 832, 842 (Fed. Cir.
2009) (holding that “language of ‘do hereby assign’ effected
a present assignment”), aff’d, 563 U.S. 776 (2011);
Speedplay, 211 F.3d at 1253 (holding assignee “automati-
cally obtained title” to patent via assignment language that
recited “hereby conveys, transfers and assigns”). Exhibit D
of the 2006 Agreement lists the “ADVANCE® Intra-Oper-
ative Knee Tensioner” as the sole “Licensed Product[].”
J.A. 19148. Dr. Rasmussen testified that the “Advanced In-
tra-Operative Knee Tensioner” is the Zen Instrument. J.A.
13558–60. Thus, no further action was needed to convey
the patent rights at issue in this case to Wright.
Rasmussen further argues that “Dr. Rasmussen has
many patents relating to the Zen Instruments beyond the
Asserted Patents” such that Section 3.2 should not be read
to convey “all his patents covering the Zen [I]nstruments,”
and that the agreement captures only “future inventions,”
“information about products” but not the “products,” and
does not capture “intellectual property pre-dating, or devel-
oped during, the Agreement term.” Cross-Appellant’s
Opening and Response Br. 30–32. DePuy argues “[t]hose
claims cannot be squared with the language of the 2006
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Agreement. It would be bizarre for Wright to have agreed
to monetize Rasmussen’s invention while simultaneously
allowing Rasmussen to retain exclusionary rights over the
very devices Wright was to commercialize.” Appellant’s Re-
ply Br. 6. We agree with DePuy.
Rasmussen’s argument that the patent application
that gave rise to the asserted patent is not mentioned in
the contract is unavailing. Cross-Appellant’s Opening and
Response Br. 31–32. The sole case Rasmussen cites stands
for the proposition that express assignment of the parent
patent did not assign the child by silent implication. Euclid
Chem. Co. v. Vector Corrosion Techs., Inc., 561 F.3d 1340,
1344 (Fed. Cir. 2009). No such issue is implicated in the
present case. Instead, we have found “broad language,” like
that used in the 2006 Agreement, “more than sufficient to”
assign the disputed “inventions and all related patents and
applications.” Regents of the Univ. of N.M. v. Knight,
321 F.3d 1111, 1120 (Fed. Cir. 2003).
Moreover, our caselaw does not support the proposition
that assignments of patent ownership can simply be re-
voked without a formal re-assignment of the patent back to
the original owner. At most, we have held that patent “as-
signment may be declared null and void by operation of
law—either through a forfeiture provision present in the
agreement or under a provision of applicable state law”—
but not by merely claiming to retroactively amend the con-
tract effectuating the assignment. Jim Arnold Corp. v. Hy-
drotech Sys., Inc., 109 F.3d 1567, 1577 (Fed. Cir. 1997).
And to the extent Rasmussen invokes the Tennessee or
Utah Uniform Contract Code provisions in support of its
arguments relying on the course of dealing between Dr.
Rasmussen and Wright, those arguments are unavailing.
First, the codes provide that unambiguous contract terms
prevail over course of dealing, Tenn. Code Ann. § 47-1-
303(e)(1); Utah Code Ann. § 70A-1a-303(5)(a). Second, Ras-
mussen does not cite any provision of state law that
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provides that nunc pro tunc applies to revoke patent as-
signments.
There is no indication that the Asserted Patents were
ever assigned back to Dr. Rasmussen by Wright; thus,
Dr. Rasmussen had no rights in the Asserted Patents to
convey to Rasmussen in 2020. Accordingly, we hold that
Rasmussen lacked standing to bring its infringement suit
because it did not own the Asserted Patents at the time
that it filed its action, and the district court erred in exer-
cising its jurisdiction over this case.
IV
We have considered the parties’ remaining arguments
and find them unpersuasive. Because we conclude that
Rasmussen does not own the patents that it asserted in the
appealed infringement action, we vacate the district court’s
final judgment and remand for the district court to dismiss
this action for lack of subject matter jurisdiction.
VACATED AND REMANDED
COSTS
No costs.
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