U.S. Surgical manufactures medical surgical instruments and markets the instruments to hospitals. The packaging for U.S. Surgical’s disposable medical instruments is labeled “for single use only.” As an example, one label contains the following language: “Unless opened or damaged, contents of package are sterile. DO NOT RESTERILIZE. For multiple use during a SINGLE surgical procedure. DISCARD AFTER USE.”
Orris provides a service to the hospitals that purchase U.S. Surgical’s disposable instruments. After the hospitals use or open the instruments, Orris cleans, resterilizes, and/or resharpens the instruments for future use and returns them to the hospitals from which they came. U.S. Surgical filed suit asserting that reprocessing, repackaging, and reuse of its disposable instruments constituted a violation of its patent and trademark rights. Orris says that U.S. Surgical did not prohibit hospitals from re-using the instruments and it was not doing anything that violated the contracts U.S. Surgical had with the hospitals. U.S. Surgical says the language on the packaging was an additional terms that the hospitals accepted by opening the packages and using the instruments. Who is correct? [U.S. Surgical Corp. v Orris, Inc., 5 F Supp 2d 1201 (D Kan); Affirmed 185 F3d 885 (10th Cir) and 230 F3d 1382 (Fed Cir)]