Patent and trademark – Spoliation

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Where a plaintiff claiming spoliation of evidence has filed a motion for an adverse inference instruction, that motion should be denied without prejudice, as evidence has been spoliated, but the question of whether the defendant did so negligently or with the intent to deprive another party of its use in the litigation must await further factual development.

“This is an action for patent infringement. It is the second lawsuit between the parties concerning a line of intravascular blood pumps. … In this case, plaintiff Maquet Cardiovascular LLC has sued defendants Abiomed, Inc., Abiomed R&D, Inc., and Abiomed Europe GmbH for infringing U.S. Patent No. 10,238,783 (filed Sep. 21, 2018) (‘the ’783 patent’). Defendants (collectively, ‘Abiomed’) have counterclaimed for declaratory judgment of noninfringement.

“Maquet contends that Abiomed has spoliated evidence concerning Dr. Walid AboulHosn, who is both the first-named inventor on the ’783 patent, the rights to which are owned by Maquet, and a former consultant to Abiomed. …

“… Dr. Aboul-Hosn began working for Abiomed as a consultant in 2007, providing services in the research and design of intravascular blood pumps. …

“It is abundantly clear from the record that Abiomed has failed to preserve potentially relevant ESI. …

“In any event, it was Abiomed’s responsibility to preserve the evidence that existed as of the beginning of 2016. It failed to do so. The Court therefore has no difficulty concluding that evidence has been spoliated. What is less clear is whether Abiomed did so negligently, or ‘with the intent to deprive another party of [its] use in the litigation.’ … That question must await further factual development, including, potentially, testimony at the trial. It is also possible that sanctions other than an adverse inference instruction may be appropriate.

“Accordingly, the Court will deny Maquet’s motion for an adverse inference instruction without prejudice to its renewal, and without prejudice to its ability to seek other relief.”

Maquet Cardiovascular LLC v. Abiomed, Inc., et al. (Lawyers Weekly No. 02-074-26) (23 pages) (Saylor, J.) (Civil Action No. 17-12311-FDS) (Feb. 11, 2026).

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