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Stern v. Globus Medical, Inc.

United States District Court, D. Delaware

August 24, 2017

JOSEPH D. STERN, Plaintiff,
v.
GLOBUS MEDICAL, INC., Defendant.

          Kenneth L. Dorsney, Esq., MORRIS JAMES LLP, Wilmington, DE; Joel A. Kauth, Esq. (argued), KPPB LLP, Anaheim, CA; Mark Y. Yeh, Esq., KPPB LLP, Anaheim, CA. Attorneys for Plaintiff

          Adam W. Poff, Esq., YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, DE; Robert M. Vrana, Esq., YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, DE; George D. Moustakas, Esq. (argued), HARNESS, DICKEY & PIERCE, P.L.C., Troy, MI. Attorneys for Defendant.

          MEMORANDUM OPINION

          ANDREWS, DISTRICT JUDGE:

         Presently before the Court is the issue of claim construction of multiple terms in U.S. Patent Nos. 8, 556, 895 ("the '895 Patent") and 8, 858, 556 ("the '556 Patent). The Court has considered the Parties' Joint Claim Construction Brief (D.I. 52). The Court heard oral argument on August 9, 2017. (D.I. 55) ("Hr'g Tr.").

         I. BACKGROUND

         Plaintiff filed this action on February 17, 2016, alleging infringement of three patents. (D.I. 1). On March 27, 2017, Plaintiff stipulated to dismissal of one of these patents, leaving the '895 and '556 patents remaining in suit. (D.I. 40). These two remaining patents share a common specification and claim cervical plating systems and methods of cervical fusion using these systems.

         II. LEGAL STANDARD

         "It is a bedrock principle of patent law that the claims of a patent define the invention to which the patentee is entitled the right to exclude." Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal quotation marks omitted). '"[T]here is no magic formula or catechism for conducting claim construction.' Instead, the court is free to attach the appropriate weight to appropriate sources 'in light of the statutes and policies that inform patent law.'" SoftView LLC v. Applelnc, 2013 WL4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips, 415 F.3d at 1324) (alteration in original). When construing patent claims, a court considers the literal language of the claim, the patent specification, and the prosecution history. Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). Of these sources, "the specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Phillips, 415 F.3d at 1315 (internal quotation marks omitted).

         "[T]he words of a claim are generally given their ordinary and customary meaning.... [Which is] the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application." Id. at 1312-13 (citations and internal quotation marks omitted). "[T]he ordinary meaning of a claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321 (internal quotation marks omitted). "In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words." Id. at 1314.

         When a court relies solely upon the intrinsic evidence-the patent claims, the specification, and the prosecution history-the court's construction is a determination of law. See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015). The court may also make factual findings based upon consideration of extrinsic evidence, which "consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Phillips, 415 F.3d at 1317-19 (internal quotation marks omitted). Extrinsic evidence may assist the court in understanding the underlying technology, the meaning of terms to one skilled in the art, and how the invention works. Id. Extrinsic evidence, however, is less reliable and less useful in claim construction than the patent and its prosecution history. Id.

         "A claim construction is persuasive, not because it follows a certain rule, but because it defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa 'per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would exclude the inventor's device is rarely the correct interpretation." Osram GMBH v. Int'l Trade Comm '«, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation and internal quotation marks omitted).

         III. CONSTRUCTION OF DISPUTED TERMS

         A. The Patents-In-Suit

         The '895 patent is directed to cervical plating systems and methods of cervical fusion using those systems. Claim 1 is representative and reads as follows:

1. An anterior cervical plating system comprising:
at least one pre-positioned cervical plate defining a cervical plate body having a lower horizontal face configured to be disposed adjacent a first vertebral body and an upper horizontal face opposite said fewer horizontal face, and having at least a first vertebral anchoring mechanism configured to attach to the first vertebral body and at least one interlocking portion arranged on the cervical plate body along a longitudinal axis thereof;
at least one revision cervical plate defining a revision plate body having at least a second vertebral anchoring mechanism configured to attach to a second vertebral body and at least one armature extending from the revision plate body along a longitudinal axis thereof, the at least one armature having a cooperative interlocking portion disposed thereon;
wherein the at least one cooperative interlocking portion of the revision plate is configured to cooperatively engage the at least one interlocking portion of the pre-positioned cervical plate to provide a stabilizing interconnection between adjacent pre-positioned cervical plate and the revision cervical plates, the stabilizing interconnection being capable of resisting movement of the adjacent cervical plates in at least one dimension;
wherein the cooperative interlocking portion of the revision cervical plate is configured such that it initially engages the interlocking portion of the pre-positioned cervical plate from above the upper horizontal face of the pre-positioned cervical plate;
wherein no threaded connector is inserted through or between any portion of the at least one armature in forming and permanently securing the stabilizing interconnection between the interlocking portion of the pre-positioned cervical plate and the cooperative interlocking portion of the revision plate; and
wherein the cooperative interlocking portion of the revision plate does not directly anchor into the first vertebral body or the second vertebral body when the stabilizing interconnection is made.

('895 patent, claim 1) (disputed terms italicized). Certain disputed terms appear only in dependent claims. Claims 3, 5, and 17 of the '895 patent are representative of these dependent claims and read as follows:

3. The system of claim 1, wherein the interlocking portion the of pre- positioned cervical plate comprises a. groove integrally formed into at least one of the distal and proximal ends of the body of the cervical plate, and wherein the armature of the ...

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