United States District Court, D. Delaware
JOSEPH D. STERN, Plaintiff,
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
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.
ANDREWS, DISTRICT JUDGE:
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
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.
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).
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.
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.
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).
CONSTRUCTION OF DISPUTED TERMS
'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 ...