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Ansell Healthcare Products LLC v. Reckitt Benckiser LLC

United States District Court, D. Delaware

January 30, 2018

ANSELL HEALTHCARE PRODUCTS LLC, Plaintiff,
v.
RECKITT BENCKISER LLC, Defendant.

          Colm F. Connolly, David W. Marston Jr., Jody C. Barillare, John V. Goodman, MORGAN LEWIS & BOCKIUS LLP, Wilmington, DE; Thomas B. Kenworthy (argued), Julie S. Goldemberg, MORGAN LEWIS & BOCKIUS LLP, Philadelphia, PA; Raymond R. Moser, Jr., MOSER TABOADA, Shrewsbury, NJ. Attorneys for Plaintiff.

          Adam W. Poff, Pilar G. Kraman, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, DE; Douglas J. Nash (argued), John D. Cook (argued), Kathryn D. Cornish, BARCLAY DAMON, LLP, Syracuse, NY. Attorneys for Defendant.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Presently before the Court are Plaintiff Ansell Healthcare Products LLC's Motion for Summary Judgment of Non-Invalidity Under 35 U.S.C. Sections 102 and 103 (D.I. 189) and related briefing (D.I. 190, 206, 218); Ansell's Motion for Summary Judgment of Infringement of Claims 1 and 5 of U.S. Patent No. 9, 074, 027 (D.I. 192) and related briefing (D.I. 193, 208, 220); Defendant Reckitt Benckiser's Motion for Summary Judgment of Invalidity (D.I. 201) and related briefing (D.I. 202, 223, 234); RB's Motion for Partial Summary Judgment of Non-Infringement (D.I. 203) and related briefing (D.I. 204, 224, 231); and RB's Motion for Summary Judgment of No Willful Infringement and No Enhanced Damages (D.I. 198) and related briefing (D.I. 199, 222, 233). I held oral argument on January 22, 2018. (D.I. 262 ("Tr.")).

         As stated at oral argument, the Court will DENY the parties' summary judgment motions related to infringement and validity (D.I. 189, 192, 201, 203), insofar as they relate to non-claim construction issues. (Tr. at 106:19-108:20). For the reasons that follow, the Court will also DENY the remainder of the parties' summary judgment motions related to infringement and validity (D.I. 189, 192, 201, 203), and will GRANT RB's Motion for Summary Judgment of No Willful Infringement and No Enhanced Damages (D.I. 198).

         I. BACKGROUND

         Ansell brought this patent infringement suit against RB on October 13, 2015, alleging that RB infringes United States Patent Nos. 8, 087, 412 ("the '412 patent"), 8, 464, 719 ("the '719 patent"), 9, 074, 027 ("the '027 patent), and 9, 074, 029 ("the '029 patent") by importing, selling, or offering for sale the accused Durex RealFeel® condoms. (D.I. 1). Ansell has asserted claims 1, 2, 3, 4, 8, and 9 of the '412 patent; claims 1, 8, 10, 11, 16, and 17 of the '719 patent; claims 1 and 5 of the '027 patent; and claims 1, 2, 3, 7, 8, 11, 16, and 17 of the '029 patent. (D.I. 202 at 1).

         All asserted claims require "synthetic polyisoprene particles bonded to each other through intra-polyisoprene particle crosslinks and inter-polyisoprene particle crosslinks." (D.I. 202 at 2). Claims 1 and 5 of the '027 patent require that "the intra-polyisoprene particle crosslinks and the inter-polyisoprene particle crosslinks are such that the molecular weight is less than about [X] g/mol between the crosslinks." (D.I. 202 at 3). Claim 1 of the '027 patent reads as follows:

         1. A synthetic, dip-formed polyisoprene elastomeric condom comprising:

synthetic polyisoprene particles, said synthetic polyisoprene particles bonded to each other through intra-polyisoprene particle crosslinks and inter-polyisoprene particle crosslinks; wherein the intra-polyisoprene particle crosslinks and the inter-polyisoprene particle crosslinks are such that the molecular weight is less than about 8000 g/mol between the crosslinks.

(D.I. 1-3 ("the '027 patent"), claim 1).

         II. LEGAL STANDARD

         A. Summary Judgment

         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the initial burden of proving the absence of a genuinely disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).

         B. Claim Construction

         "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. A WH 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. Apple Inc., 2013 WL 4758195, 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. 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 '/i, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation omitted).

         III. DISCUSSION

         1. Claim Construction

         a. "synthetic polyisoprene particles, said synthetic polyisoprene particles bonded to each other through intra-polyisoprene particle crosslinks and inter-polyisoprene particle crosslinks"

i. Ansell 's proposed construction: The claims do not require intra-polyisoprene particle crosslinks to cross the boundaries between particles to bond one ...

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