United States Court of Appeals
for the Federal Circuit
__________________________
TRIMED, INCORPORATED,
Plaintiff-Appellant,
v.
STRYKER CORPORATION,
Defendant-Appellee.
__________________________
2009-1423
__________________________
Appeal from the United States District Court for the
Central District of California in case no. 06-CV-1918,
Judge Manuel L. Real.
__________________________
Decided: June 9, 2010
__________________________
LEE F. GROSSMAN, Niro, Scavone, Haller & Niro, of
Chicago, Illinois, argued for plaintiff-appellant. With him
on the brief were MARK M. GROSSMAN, Grossman Law
Offices, of Chicago, Illinois; and SEAN M. KNEAFSEY,
Kneafsey, Tostado & Associates LLP, of Los Angeles,
California.
GREGORY J. VOGLER, McAndrews, Held & Malloy,
Ltd., of Chicago, Illinois, argued for defendant-appellee.
With him on the brief were ROBERT A. SURRETTE and
STEPHANIE F. SAMZ.
TRIMED v. STRYKER 2
__________________________
Before LOURIE, LINN, and MOORE, Circuit Judges.
LINN, Circuit Judge.
This patent infringement action returns to us for a
second time after having been previously appealed and
remanded on claim construction and infringement ques-
tions in TriMed, Inc. v. Stryker Corp., 514 F.3d 1256 (Fed.
Cir. 2008) (“TriMed I”). In the present appeal, TriMed,
Incorporated (“TriMed”) challenges a decision of the
United States District Court for the Central District of
California granting summary judgment of invalidity of
the asserted claims of U.S. Patent No. 5,931,839 (“the ’839
patent”) in favor of Stryker Corporation (“Stryker”).
Because the district court improperly resolved genuine
issues of material fact in favor of Stryker and because
reassignment is advisable to preserve the appearance of
justice, we reverse and remand with an instruction to
reassign this matter to a different judge.
I. BACKGROUND
A. The ’839 patent
TriMed is the owner of the ’839 patent, which covers
an implantable device used to set bone fractures, such as
a type of wrist fracture known as a Colles’ fracture. The
’839 patent describes four prior art methods of setting a
Colles’ fracture, two of which merit discussion here. In
the first method, referred to as open reduction and inter-
nal fixation, a surgeon cuts open the wrist, places the
fractured bones back in their original position (i.e., re-
duces the bone fractures), and “appl[ies] plates, screws,
and pins as needed.” ’839 patent col.2 ll.6-8. This usually
involves the surgeon opening the skin above the fracture
and positioning a metal plate across the fracture. The
surgeon then attaches the plate to both the stable and
3 TRIMED v. STRYKER
fractured bone fragments with screws. The open reduc-
tion technique has several drawbacks. First, the method
requires the surgeon to make screw holes in the fractured
bone, which can lead to further fragmentation. Second, if
the fractured bone is small or osteoporotic, the screw
threads cannot attach the screw to the bone. Finally,
rotation of the screw into the fractured fragment causes
compression across the fracture, which may cause the
fragment to shatter.
The second method, known as percutaneous pinning,
involves inserting a first end of one or more small pins
called Kirschner wires (also referred to as “K-wires”),
through a fractured bone fragment across the fracture
and into a stable bone fragment, leaving the other end of
each pin extending out of the fractured bone fragment.
Because a pin is less likely to weaken a fragmented bone,
pins are better suited than screws for fixating small or
osteoporotic bone fragments. However, because pins have
a tendency to bend or be displaced, doctors generally
apply a cast to immobilize the wrist and elbow of the
patient while the bone heals, subjecting the patient to the
stiffness and loss of function associated with the use of
casts.
The ’839 patent describes an implantable device that
includes three kinds of components: screws, pins, and a
plate with screw holes on one end of the plate and pin
holes on the opposite end thereof. The patent explains
that, unlike prior art techniques of setting fractures, the
invention permits “rigid fixation of fracture fragments
while allowing immediate motion of a joint.” ’839 patent
col.3 ll.22-43. Figures 1 and 5 of the ’839 patent are
illustrative of an embodiment of the device:
TRIMED v. STRYKER 4
In one method of implanting the device, a surgeon
opens the skin above a fracture 11, slides a pin 8 through
a fractured bone fragment 9 across the fracture 11, and
embeds the pin 8 in a stable bone fragment 10, leaving
the other end of the pin 8 extending above the fractured
fragment 9. The surgeon then positions a plate 1 across
the fracture 11 such that the end of the pin 8 extending
above the fractured fragment 9 rests in a pin hole 3. As
we observed in TriMed I, the hole 3 stabilizes the project-
ing end of the pin 8 against movement in the plane of
plate 1 and allows the pin 8 to slide axially through the
plate 1 while preventing compression across the fracture
11. 514 F.3d at 1260. The surgeon places the opposite
end of the plate 1 over the stable bone fragment 10 and
attaches the plate 1 to this fragment by inserting screws 7
through screw holes 2 in the plate 1 into the stable bone
fragment 10.
5 TRIMED v. STRYKER
B. Prior Proceedings
On March 30, 2006, TriMed initiated the underlying
action against Stryker, asserting that a wrist fixation
device manufactured and sold by Stryker infringes claims
1, 2, and 7-11 of the ’839 patent. Claim 1, the independ-
ent claim from which the other asserted claims depend,
reads as follows:
1. An implantable device for fixation of at least
one fractured bone fragment to a stable bone
fragment, said implantable device comprising an
implantable plate having opposite end portions,
fastening means for securing one end portion of
said plate to stable bone, at least one fixation pin
for penetrating said at least one fractured bone
fragment, and traversing a fracture for entering
the stable bone fragment and for being secured
therein at a stable fixation site at a far end of said
fixation pin, the opposite, near end of said pin be-
ing adapted for extending from the fractured bone
fragment, said near end of said pin being engage-
able in one of a plurality of holes in the other end
portion of the plate, said holes in said plate pro-
viding means for allowing the pin to slide axially
therein but preventing compression across the
fracture, and stabilizing said near end of the pin
against displacement in the plane of the plate.
’839 patent col.6 ll.17-32.
After the completion of discovery, the district court
granted Stryker’s motion for summary judgment of nonin-
fringement, simply signing Stryker’s Statement of Uncon-
troverted Facts and Conclusions of Law and entering
judgment in favor of Stryker. On appeal, this court
determined that the district court had incorrectly con-
TRIMED v. STRYKER 6
strued the “means for allowing the pin to slide” limitation
as being subject to 35 U.S.C. § 112, paragraph 6, reversed
the judgment, and remanded the case for further proceed-
ings. TriMed I, 514 F.3d at 1261-62.
On remand, Stryker moved for summary judgment of
invalidity on the ground that an article entitled “Treat-
ment of Complex Intra-Articular Distal Radius Fractures”
by Stephen J. Leibovic, M.D. and William B. Geissler,
M.D. (“the Leibovic article”) and U.K. Patent Application
No. GB 2 245 498 A listing Eugen May as the inventor
(“the May application”) each anticipates the asserted
claims. Stryker argued that images in the Leibovic article
show a fracture set using an arrangement of pins and
plates with holes that satisfies the limitations of the
asserted claims. Regarding the May application, Stryker
contended that the application discloses a plate that has
holes for screws and smaller holes for guide wires.
Stryker asserted that the May application is anticipatory
because the guide wire, plate, and guide wire hole dis-
closed in the May application perform the same functions
as the plate, fixation pin, and hole of the asserted claims
of the ’839 patent.
Stryker also argued that the claims at issue would
have been obvious in light of either the Leibovic article or
the May application combined with an article entitled
“Percutaneous Kirschner-Wire Fixation of Colles Frac-
tures” by Gary J. Clancey, M.D. (“the Clancey article”).
Stryker characterized the Clancey article as disclosing the
conventional percutaneous pinning method previously
discussed. Stryker asserted that TriMed simply combined
known elements from these references and employed a
logical, commonsense solution to the problem of stabiliz-
ing pins against displacement—selecting a prior art plate
with holes of the appropriate size relative to the pin.
Stryker also argued that combining the elements dis-
7 TRIMED v. STRYKER
closed in either the Leibovic article or the May application
with the pinning technique disclosed in the Clancey
article would achieve predictable results. To support
these arguments, Stryker relied on the declaration of its
expert, Dr. Barry Feinberg.
In response, TriMed filed a memorandum contesting
nearly every aspect of Stryker’s motion for summary
judgment. According to TriMed, the Leibovic article
describes setting a first fragment using plates and screws
in the conventional open reduction and internal fixation
method described above. TriMed claimed that the article
also discusses repositioning a separate second fragment
within the articular joint and inserting K-wires under-
neath the repositioned fracture to prevent the fracture
from collapsing. TriMed alleged that the K-wires do not
pass through the holes in the plate used to set the first
fragment and therefore neither the disclosed holes nor the
disclosed wires meet the limitations of the asserted
claims. TriMed argued that the May application fails to
teach the claimed device because the disclosed guide
wires are temporarily inserted into holes in the plate to
maintain alignment during surgery and do not perform
the functions of the claimed fixation pin. Moreover,
TriMed argued that the disclosed holes do not prevent
compression across the fracture or stabilize the near end
of a pin as required by the claims.
TriMed also challenged Stryker’s claim that the com-
bination of either the May application or the Leibovic
article with the Clancey article rendered the asserted
claims obvious, arguing that neither of the proposed
combinations would result in the claimed invention.
TriMed further contended that the invention was not a
logical, commonsense solution to a known problem, nor
were the results achieved by the invention predictable.
Finally, TriMed presented evidence of secondary consid-
TRIMED v. STRYKER 8
erations of nonobviousness that showed that the orthope-
dic industry was initially skeptical of the invention but
later praised it. TriMed submitted a declaration from its
expert, Dr. Robert Medoff, in support of these contentions.
In deciding Stryker’s motion, the district court again
simply signed Stryker’s Uncontroverted Statement of
Facts and Conclusions of Law without any changes other
than crossing out the anticipation section and granted
summary judgment of invalidity in favor of Stryker.
TriMed timely appealed, and we have jurisdiction under
28 U.S.C. § 1295(a)(1).
II. DISCUSSION
On appeal, TriMed argues that the district court im-
properly resolved genuine issues of material fact in favor
of Stryker and urges us to reverse the district court’s
grant of summary judgment and remand this matter with
an instruction to reassign the case to a different judge.
Stryker argues in opposition that none of the material
facts are in dispute and that the district court properly
determined that the asserted claims would have been
obvious. Stryker contends that we can also uphold the
district court’s judgment on anticipation grounds.
Stryker also complains that TriMed improperly filed
an expert declaration after the district court barred
TriMed from filing expert reports. TriMed contends that
Stryker’s expert is not one of ordinary skill in the art.
Although these arguments were raised before the district
court, the court did not address them. Because, as a
general matter, “a federal appellate court does not con-
sider an issue not passed upon below,” Singleton v. Wulff,
428 U.S. 106, 120 (1976), we decline to address these
arguments in the first instance and refer them to the
district court for consideration on remand.
9 TRIMED v. STRYKER
We begin by addressing the parties’ invalidity conten-
tions and then turn to Stryker’s request to reassign this
matter.
A. Invalidity
We review de novo the district court’s grant of sum-
mary judgment, “reapplying the standard applicable at
the district court.” Young v. Lumenis, Inc., 492 F.3d 1336,
1345 (Fed. Cir. 2007). Summary judgment is proper “if
the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). In assessing summary judgment, the evidence is
viewed “through the prism of the evidentiary standard of
proof that would pertain at a trial on the merits.” SRAM
Corp. v. AD-II Eng’g, Inc., 465 F.3d 1351, 1357 (Fed. Cir.
2006). Because patents are presumed valid, “a moving
party seeking to invalidate a patent at summary judg-
ment must submit such clear and convincing evidence of
facts underlying invalidity that no reasonable jury could
find otherwise.” Id.
TriMed argues that the district court improperly re-
solved a number of material factual disputes in favor of
Stryker. These disputes include the following: (1)
whether the guide wire discussed in the May application
is a fixation pin; (2) whether the holes disclosed in either
the Leibovic article or the May application stabilize the
near end of a fixation pin against displacement and
prevent compression across a fracture; and (3) whether
the Leibovic article shows a K-wire passing through a
plate. TriMed further contends that the district court
ignored its evidence of secondary considerations of nonob-
viousness.
TRIMED v. STRYKER 10
TriMed also takes issue with the characterization of
the claimed subject matter as a commonsense, predictable
combination of known elements. TriMed contends that
the functions of the claimed holes and plates are funda-
mentally different from the functions of the holes and
plates described in the asserted prior art references.
According to TriMed, prior art plates acted as load-
bearing members to support fractured bone fragments,
whereas the sole function of the claimed plate is to pro-
vide holes for the pin. The claimed holes allow the pin to
slide axially while preventing compression across the
fracture and stabilize the near end of the pin against
displacement in the plane of the plate—functions that
TriMed claims were not performed by prior art holes.
TriMed contends that the results achieved by the claimed
invention would not have been predictable because it was
unknown at the time of the invention whether holes could
perform these functions.
In response, Stryker argues that the ’839 patent
claims a predictable combination of known prior art
elements that operate according to their established
functions. As noted above, it was known at the time of
the invention that screws are ill-suited to attach a plate to
small or osteoporotic bone fragments and that pins are a
more appropriate means to fixate these kinds of frag-
ments. Stryker reasons that this knowledge would have
led one of skill in the art at that time to modify the open
reduction and internal fixation method by replacing the
screw used to attach the plate to the fractured bone
fragment with a pin. It was also well-known at the time
of the invention that pins tended to bend or be displaced,
which could impede healing. Stryker argues that common
sense and logic would have suggested selecting a plate
with holes of an appropriate size to prevent the pin from
bending or moving. Because TriMed does not dispute that
11 TRIMED v. STRYKER
these fixation methods, and their associated advantages
and disadvantages, were known at the time of the inven-
tion, Stryker contends that the district court correctly
determined that there are no genuine issues of material
fact and properly granted summary judgment of invalid-
ity in Stryker’s favor.
We agree with TriMed. A patent is invalid “if the dif-
ferences between the subject matter sought to be patented
and the prior art are such that the subject matter as a
whole would have been obvious at the time the invention
was made to a person having ordinary skill in the art to
which said subject matter pertains.” 35 U.S.C. § 103(a).
Whether the claimed subject matter would have been
obvious at the time of invention to one of ordinary skill in
the pertinent art is a question of law based on underlying
facts. Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340,
1348 (Fed. Cir. 2000). The relevant factual inquiries
include the oft-cited Graham factors:
(1) the scope and content of the prior art; (2) the
differences between the claimed invention and the
prior art; (3) the level of ordinary skill in the art;
and (4) any relevant secondary considerations . . ..
Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H.
Patrick Co., 464 F.3d 1356, 1360 (Fed. Cir. 2006) (citing
Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-
18 (1966)). Summary judgment of obviousness is appro-
priate if “the content of the prior art, the scope of the
patent claim, and the level of ordinary skill in the art are
not in material dispute, and the obviousness of the claim
is apparent in light of these factors.” KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 427 (2007).
When determining whether a patent claiming a com-
bination of known elements would have been obvious, we
TRIMED v. STRYKER 12
“must ask whether the improvement is more than the
predictable use of prior art elements according to their
established functions.” Id. at 417. This inquiry is factual
in nature. Cf. Medichem, S.A. v. Rolabo, S.L., 437 F.3d
1157, 1165 (Fed. Cir. 2006) (explaining that whether
there is “a reasonable expectation of success in making
the invention via” a combination of prior art elements is a
question of fact). Answering this question usually entails
considering the “interrelated teachings of multiple pat-
ents; the effects of demands known to the design commu-
nity or present in the marketplace; and the background
knowledge possessed by a person having ordinary skill in
the art, all in order to determine whether there was an
apparent reason to combine the known elements in the
fashion claimed by the patent at issue.” KSR, 550 U.S. at
418. What a reference teaches, whether there is a trend
or demand in the relevant marketplace or design commu-
nity, the background knowledge of one of skill in the art—
these are all questions reserved for the finder of fact. See
Digital Control, Inc. v. Charles Mach. Works, 437 F.3d
1309, 1316 (Fed. Cir. 2006) (“[W]hat a reference teaches is
a question of fact . . . .”); Monarch Knitting Mach. Corp. v.
Sulzer Morat GmbH, 139 F.3d 877, 882 (Fed. Cir. 1998)
(“Whether the prior art discloses a ‘trend’ is a question of
fact.”); Gen. Elec. Co. v. Nintendo Co., 179 F.3d 1350, 1363
(Fed. Cir. 1999) (concluding that a genuine issue of mate-
rial fact existed regarding the background knowledge of
one of skill in the art). These factual questions are not
separate and distinct from those set out in Graham;
rather, they fall comfortably within those familiar catego-
ries of factual inquires. See, e.g., Dystar, 464 F.3d at 1360
(noting that what the prior art teaches is a subsidiary
determination of the scope and content of the prior art).
Many of these factual questions are in dispute here.
For instance, the parties dispute what the asserted prior
13 TRIMED v. STRYKER
art teaches. Specifically, the parties disputed the follow-
ing: (1) whether either the May application or the Leibo-
vic article discloses the claimed holes; (2) whether the
May application discloses the claimed fixation pin; and (3)
whether the Leibovic article shows a K-wire passing
through a plate. Compare Decl. of Barry Feinberg in
Supp. of Stryker’s Mot. For Summ. J. 8-9 (“The 1992 May
Patent Application discloses bores (holes) (8) [that] are
[the claimed holes].”) (“Feinberg Decl.”) with Decl. of
Robert Medoff, M.D. in Supp. of TriMed’s Opp’n to
Stryker’s Mot. for Summ. J. 7 (“Because the plate [in the
May application] is secured with screws . . . the holes do
not prevent compression across the fracture . . . . Because
there is no disclosure of the size of the holes, it . . . does
not address[] stabilizing the near end of the pin.”)
(“Medoff Decl”); compare Feinberg Decl. 8 (explaining how
Figure 4C of the Leibovic article discloses the claimed
holes) with Medoff Decl. 9 (contending that the Leibovic
article does not teach the claimed holes); compare
Feinberg Decl. 6-7 (opining that the guide wires disclosed
in the May application are fixation pins) with Medoff Decl.
6 (stating that the guide wires disclosed in the May
application are not fixation pins); compare Feinberg Decl.
7 (stating that Figure 4C of the Leibovic article shows the
near end of a pin engaging a hole in a plate) with Medoff
Decl. 8 (contending that the Leibovic article does not show
a K-wire passing through a plate). The parties also
disputed whether the claimed invention achieves predict-
able results and uses prior art elements according to their
established functions. Compare Feinberg Decl. 16 (“[I]t
would have been obvious . . . to combine the [asserted
references] because the combination of these references
achieves predictable results. . . . When the prior art pins
and the prior art plates with holes are combined . . . the
pins and plates with holes function in a predictable man-
ner.”) with Medoff Decl. 11 (“The results were not predict-
TRIMED v. STRYKER 14
able, as stabilizing the near end of the pin with holes . . .
was so different than any procedure wrist surgeons had
previously performed. . . . [T]he ‘839 patented Pin Plate
was not simple. To the contrary . . . the mechanics of
fixation [are] completely different from that of screws,
plates, and the compressive forces used to fix fractured
fragment[s].”). Stryker’s argument that these disputes
are immaterial ignores how the resolution of these ques-
tions informs the obviousness inquiry in this case.
Stryker attempts to circumvent these genuine issues
of material fact by suggesting that the claimed subject
matter would have been obvious because it is, at least in
part, a commonsense solution to a known problem. As we
explained in Perfect Web Technologies, Inc. v. InfoUSA,
Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009), an obviousness
analysis “may include recourse to logic, judgment, and
common sense available to the person of ordinary skill
that do not necessarily require explication in any refer-
ence or expert opinion.” Although reliance on common
sense does not require a specific evidentiary basis, “on
summary judgment, to invoke ‘common sense’ or any
other basis for extrapolating from prior art to a conclusion
of obviousness, a district court must articulate its reason-
ing with sufficient clarity for review.” Id. at 1330. See
also In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(“[T]here must be some articulated reasoning with some
rational underpinning to support the legal conclusion of
obviousness.”). While Rule 52(a)(3) of the Federal Rules
of Civil Procedure contains the pertinent qualification
that a “court is not required to state findings or conclu-
sions when ruling on a motion under Rule 12 or 56,” that
rule “does not relieve a court of the burden of stating its
reasons somewhere in the record when its underlying
holdings would otherwise be ambiguous or inascertain-
able [sic],” Couveau v. Am. Airlines, Inc., 218 F.3d 1078,
15 TRIMED v. STRYKER
1081 n.3 (9th Cir. 2000) (citation omitted). “Assuredly, to
know the reasoning a district court used in deciding to
grant summary judgment facilitates the task of a review-
ing court, and there does exist a risk in complicated cases
of an unnecessary reversal if the logic that resulted in the
grant of summary judgment cannot be discerned.” Cable
Elec. Prods., Inc. v. Genmark, Inc., 770 F2d. 1015, 1020
(Fed. Cir. 1985), overruled on other grounds by Midwest
Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356 (Fed.
Cir. 1999). Both the record in this case and the order
granting Stryker’s motion for summary judgment are
devoid of such reasoning. Instead of supporting its obvi-
ousness analysis with cogent reasoning, the order merely
states that “[a] common sense [sic] solution to this prob-
lem [i.e., pin migration] involves stabilizing the pin
against . . . displacement . . . [and] the logical solution
would be to select a prior art plate that had holes with an
appropriate diameter . . . .” Order Granting Stryker’s
Mot. For Summ. J. of Invalidity 14. Neither the record
before us nor the order of the district court explains why
one of ordinary skill in the art at the time of the invention
would have found replacing a cast normally used to
stabilize a pin with a subcutaneous metal plate to be a
logical, commonsense solution to this problem. Merely
saying that an invention is a logical, commonsense solu-
tion to a known problem does not make it so.
The record also fails to explain why the district court
summarily dismissed the evidence of secondary considera-
tions of nonobviousness submitted by TriMed. We have
repeatedly held that evidence of secondary considerations
must be considered if present. See, e.g., Ruiz v. A.B.
Chance Co., 234 F.3d 654, 667 (Fed. Cir. 2000) (“Our
precedents clearly hold that secondary considerations,
when present, must be considered in determining obvi-
ousness.”). There is no indication in the record that, as
TRIMED v. STRYKER 16
required by our precedent, the court considered at all the
evidence of secondary considerations offered by TriMed.
Stryker also argues that the Leibovic article and the
May application each anticipates the asserted claims.
“[I]nvalidity by anticipation requires that the four corners
of a single[] prior art document describe every element of
the claimed invention, either expressly or inherently.”
Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d
1272, 1282 (Fed. Cir. 2000). Whether a prior art reference
anticipates a patent claim is a question of fact. Id. at
1281. As we discussed above, there are genuine issues of
material fact regarding whether either of these references
teaches all of the limitations recited in claim 1, the claim
from which the other asserted claims depend.
Because there are genuine issues of material fact and
because the record fails to provide a reasoned basis to
support the district court’s grant of summary judgment,
we conclude that the court’s grant of summary judgment
of invalidity was inappropriate and must be reversed.
B. Reassignment
We evaluate a request to reassign a matter to a differ-
ent judge under the law of the relevant regional circuit,
Research Corp. Technologies. v. Microsoft Corp., 536 F.3d
1247, 1255 (Fed. Cir. 2008), here, the Ninth Circuit. In
the Ninth Circuit, reassignment is appropriate if personal
bias or unusual circumstances are shown. Smith v.
Mulvaney, 827 F.2d 558, 562 (9th Cir. 1987). When
determining whether unusual circumstances exist, the
Ninth Circuit considers the following factors:
(1) whether the original judge would reasonably
be expected upon remand to have substantial dif-
ficulty in putting out of his or her mind previ-
ously-expressed views or findings determined to
17 TRIMED v. STRYKER
be erroneous or based on evidence that must be
rejected, (2) whether reassignment is advisable to
preserve the appearance of justice, and (3)
whether reassignment would entail waste and
duplication out of proportion to any gain in pre-
serving the appearance of fairness.
Id. at 563.
We conclude that reassignment is warranted here.
The district court has now been reversed twice after
entering summary judgment against TriMed, in both
instances simply signing Stryker’s proposed statement of
law and facts relevant to the decided issues, a disfavored
practice in the Ninth Circuit, see Living Designs, Inc. v.
E.I. Dupont De Nemours & Co., 431 F.3d 353, 373 (9th
Cir. 2005) (noting that the Ninth Circuit has “criticized
district courts that ‘engaged in the “regrettable practice”
of adopting the findings drafted by the prevailing party
wholesale.’” (citation omitted)). Although mindful of the
burden reassignment places on judicial resources, given
the particular circumstances present here, we are con-
vinced that reassigning this matter to a different judge is
necessary to preserve the appearance of justice. Thus,
pursuant to our supervisory authority under 28 U.S.C. §
2106, we remand this case to the Chief Judge of the
United States District Court for the Central District of
California to determine the reassignment of this case to a
different district judge.
III. CONCLUSION
For the foregoing reasons, we reverse the district
court’s grant of summary judgment of invalidity and
remand for reassignment of this case to a different district
judge.
REVERSED and REMANDED