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Nox Medical EHF v. Natus Neurology Inc.

United States District Court, D. Delaware

February 13, 2018

NOX MEDICAL EHF, Plaintiff,
v.
NATUS NEUROLOGY INC., Defendant.

          Bindu A. Palapura, Esq., POTTER, ANDERSON & CORROON, Wilmington, Delaware; Chad E. Nydegger, Esq. (argued), Brent P. Lorimer, Esq., WORKMAN NYDEGGER, Salt Lake City, Utah. Attorneys for Plaintiff.

          Arthur G. Connolly, III, Esq., CONNOLLY GALLAGHER LLP, Wilmington, Delaware; Thomas S. Reynolds, Esq. (argued), Jeremy Adelson, Esq. (argued), HANSEN REYNOLDS DICKINSON & CRUEGER LLC, Milwaukee, Wisconsin; Joseph J. Jacobi, Esq., HANSEN REYNOLDS DICKINSON & CRUEGER LLC, Chicago, Illinois. Attorneys for Defendant.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE

         Presently before the Court are Defendant's Motion for Summary Judgment of Invalidity of the Asserted Claims of U.S. Patent 9, 059, 532 (D.I. 136) and related briefing (D.I. 137, 157, 175), Plaintiffs Cross-Motion for Summary Judgment of No. Invalidity and for Additional Claim Construction (D.I. 156) and related briefing (D.I. 157, 175, 198), Defendant's Motion to Exclude Opinions of Nox Medical EHF's Retained Expert, Alan T. Oslan, Pursuant to Federal Rule of Evidence 702 (D.I. 144) and related briefing (D.I. 145, 179, 200), and Plaintiffs Motion to Exclude Certain Opinions and Testimony of Dr. Justin Williams That the Claims of U.S. Patent No. 9, 059, 532 are Invalid (D.I. 154) and related briefing (D.I. 155, 177, 202). I held oral argument on January 9, 2018. (D.I. 224).

         For the reasons that follow, the Court will DENY Defendant's Motion for Summary Judgment of Invalidity (D.I. 136); DENY in part and GRANT in part Plaintiffs Cross-Motion for Summary Judgment of No. Invalidity and for Additional Claim Construction (D.I. 156); DENY Defendant's Motion to Exclude Opinions of Nox Medical EHF's Retained Expert, Alan T. Oslan, Pursuant to Federal Rule of Evidence 702 (D.I. 144); and DENY in part and GRANT in part Plaintiffs Motion to Exclude Certain Opinions and Testimony of Dr. Justin Williams That the Claims of U.S. Patent No. 9, 059, 532 are Invalid (D.I. 154).

         I. BACKGROUND

         Defendant has stipulated that certain of its products infringe claims 1, 4, 5, 6, 7, 8, and 9 of U.S. Patent No. 9, 059, 532. (D.I. 72). Defendant contends that Claims 1, 6, 7, and 9 are invalid as anticipated by the Nox RES Belt; claims 4, 5, and 8 are invalid as obvious based on combinations including the Nox RES Belt; and claims 6 and 7 are invalid under § 112(b) and (d). (D.I. 137 at 8-20).[1]

         Claim 1 is an independent claim and reads as follows:

1. An electrode belt and a belt connector for electrically connecting a conductor of the electrode belt to a male portion of a snap connector electrode connected to a biometric device, the belt connector comprising:
a molded plastic frame including a receiving hole having radial flexibility, the receiving hole being configured to function as a female snap button fastener for receiving and fastening the frame to a protrusion of the male portion of the snap connector electrode,
a fastener configured to fasten the frame to a first end of said electrode belt, and
an engaging member adjacent to said receiving hole, the engaging member engaging the conductor of the electrode belt by the conductor passing through the receiving hole while being wrapped around the engaging member, such that when the male portion of the snap connector electrode penetrates the receiving hole, the conductor is forced into physical contact with at least a lateral surface of the male portion of the snap connector electrode,
wherein radial flexibility of said receiving hole is achieved by one or more slot[s] extending from said hole, and wherein said receiving hole and one or more slot[s] are formed by at least one elongated member having flexibility transverse to its longitudinal axis, thus imparting flexibility to the width of the hole.

         Claims 4 through 9 depend from claim 1. Claim 4 depends from "[t]he electrode belt and the belt connector of claim 1" and adds "wherein said belt connector comprises a cover enclosing the frame, which cover either includes a hole overlapping the receiving hole of the frame, or can be readily perforated by pressing the connector onto a male fastener which fits the receiving hole of the frame." Claim 5 depends from "[t]he electrode belt and the belt connector of claim 4" and adds "wherein said cover is selected from the group consisting of a folded paper, plastic or fabric sticker, a plastic envelope and a textile envelope." Claim 6 depends from "[t]he electrode belt and the belt connector of claim 1" and adds "wherein said fastening means comprise a slot with a row of teeth, pins or hooks transverse to the belt direction, to engage a belt end." Claim 7 depends from "[t]he electrode belt and the belt connector of claim 1" and adds "wherein said fastening means comprise a ridge member of row of pins which lies transverse to the belt direction and to which a belt end can be fastened onto with heat melting or gluing." Claim 8 depends from "[t]he electrode belt and the belt connector of claim 1" and adds "wherein said belt connector comprises an adjustment slot with teeth, pin or hook members, through which slot a loop of desired length of said belt can be inserted, to adjust and fix the length of the belt." Claim 9 depends from "[t]he electrode belt and the belt connector of claim 1" and adds "wherein said belt is a flexible textile belt with an electrode wire interwoven in the belt or laminated between two layers of the belt." (D.I. 138-1, Exh. A).

         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. 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. 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'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation omitted).

         C. Invalidity Under 35 U.S.C. § 102

         "To show that a patent claim is invalid as anticipated, the accused infringer must show by clear and convincing evidence that a single prior art reference discloses each and every element of a claimed invention." Silicon Graphics, Inc. v. ATI Tech., Inc., 607 F.3d 784, 796 (Fed. Cir. 2010). "[E]very element of the claimed invention [must be described], either expressly or inherently, such that a person of ordinary skill in the art could practice the invention without undue experimentation." Callaway Golf Co. v. Acushnet Co., 576 F.3d 1331, 1346 (Fed. Cir. 2009). As with infringement, the court construes the claims and compares them against the prior art. See Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1332 (Fed. Cir. 2010). "While anticipation is a question of fact, it maybe decided on summary judgment if the record reveals no genuine dispute of material fact." Encyclopaedia Britannica, Inc. v. Alpine Elecs. of Am., Inc., 609 F.3d 1345, 1349 (Fed. Cir. 2010).

         D. Invalidity Under 35 U.S.C. § 103

         A patent claim is invalid as obvious under 35 U.S.C. § 103 "if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains." 35 U.S.C. § 103; see also KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406-07 (2007). "Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined." KSR, 550 U.S. at 406 (internal citation omitted).

         A court is required to consider secondary considerations, or objective indicia of nonobviousness, before reaching an obviousness determination, as a "check against hindsight bias." See In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 616 F.3d 1063, 1078-79 (Fed. Cir. 2012). "Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented." Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966). Where "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, summary judgment is appropriate." KSR, 550 U.S. at 427.

         E. Invalidity Under 35 U.S.C. § 112(b)

         "[A] patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention." Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2124 (2014).

         F. Daubert

         Federal Rule of Evidence 702 sets out the requirements for expert witness testimony and states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The Third Circuit has explained:

Rule 702 embodies a trilogy of restrictions on expert testimony: qualification, reliability and fit. Qualification refers to the requirement that the witness possess specialized expertise. We have interpreted this requirement liberally, holding that "a broad range of knowledge, skills, and training qualify an expert." Secondly, the testimony must be reliable; it "must be based on the 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation'; the expert must have 'good grounds' for his o[r] her belief. In sum, Daubert holds that an inquiry into the reliability of scientific evidence under Rule 702 requires a determination as to its scientific validity." Finally, Rule 702 requires that the expert testimony must fit the issues in the case. In other words, the expert's testimony must be relevant for the purposes of the case and must assist the trier ...

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