United States District Court, D. Delaware
BARD PERIPHERAL VASCULAR, INC., Plaintiff and Counterclaim-Defendant,
ANGIODYNAMICS, INC., Defendant and Counterclaim-Plaintiff.
REPORT AND RECOMMENDATION
R. FALLON UNITED STATES MAGISTRATE JUDGE.
patent infringement action filed by plaintiff and
counterclaim-defendant Bard Peripheral Vascular, Inc.
("Bard") against defendant and
counterclaim-plaintiff AngioDynamics, Inc.
("AngioDynamics"), Bard alleges infringement of
United States Patent Nos. 8, 475, 417 ("the '417
patent"), 8, 545, 460 ("the '460 patent"),
and 8, 805, 478 ("the '478 patent")
(collectively, the "patents-in-suit"). Presently
before the court is the matter of claim construction. This
decision sets forth the court's recommendations of
constructions for the disputed claim terms discussed in the
briefing and at the Markman hearing held on January
brought this civil action for patent infringement against
AngioDynamics on March 10, 2015, asserting causes of action
for infringement of the '417 patent, the '460 patent,
and the '478 patent (collectively, the
"patents-in-suit"). (D.I. 1 at ¶¶ 18-45)
Bard's PowerPort® ClearVUE® implantable
power-injectable port products are covered by the
patents-in-suit. (Id. at ¶ 7) According to
Bard, AngioDynamics' implantable power-injectable port
products, including its Smart Port® products, infringe
the patents-in-suit. (Id. at ¶¶ 19, 27,
35) III. LEGAL STANDARD Construing the claims of a patent
presents a question of law, although subsidiary fact finding
is sometimes necessary. Teva Pharms. USA, Inc. v. Sandoz,
Inc., 135 S.Ct. 831, 837-38 (2015) (citing Markman
v. Westview Instruments, Inc., 52 F.3d 967, 977-78 (Fed.
Cir. 1995), aff'd, 517 U.S. 370, 388-90 (1996)).
"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) (internal
quotation marks omitted). "[T]here is no magic formula
or catechism for conducting claim construction."
Id. at 1324. Instead, the court may attach the
appropriate weight to appropriate sources "in light of
the statutes and policies that inform patent law."
words of the claims "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."
Phillips, 415 F.3d at 1312-13 (internal citations
and quotation marks omitted). "[T]he ordinary meaning of
a claim term is its meaning to the ordinary artisan after
reading the entire patent." Id. at 1321
(internal quotation marks omitted); see also Eon Corp. IP
Holdings v. Silver Spring Networks, Inc., 815 F.3d 1314,
1320 (Fed. Cir. 2016). Claim terms are typically used
consistently throughout the patent, and "usage of a term
in one claim can often illuminate the meaning of the same
term in other claims." Phillips, 415 F.3d at
1314 (observing that "[o]ther claims of the patent in
question, both asserted and unasserted, can also be valuable
sources of enlightenment.. . [b]ecause claim terms are
normally used consistently throughout the patent . ..").
likewise true that "[differences among claims can also
be a useful guide .... For example, the presence of a
dependent claim that adds a particular limitation gives rise
to a presumption that the limitation in question is not
present in the independent claim." Id. at
1314-15 (internal citation omitted). This "presumption
is especially strong when the limitation in dispute is the
only meaningful difference between an independent and
dependent claim, and one party is urging that the limitation
in the dependent claim should be read into the independent
claim." SunRace Roots Enter. Co., Ltd. v. SRAM
Corp., 336 F.3d 1298, 1303 (Fed. Cir. 2003) (citing
Ecolab Inc. v. Paraclipse, Inc., 285 F.3d 1362, 1375
(Fed. Cir. 2002)).
intrinsic evidence, including the patent 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." Vitronics
Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.
Cir. 1996). "[T]he specification may reveal a special
definition given to a claim term by the patentee that differs
from the meaning it would otherwise possess. In such cases,
the inventor's lexicography governs."
Phillips, 415 F.3d at 1316 (citing CCS Fitness,
Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir.
2002)). It bears emphasis that "[e]ven when the
specification describes only a single embodiment, the claims
of the patent will not be read restrictively unless the
patentee has demonstrated a clear intention to limit the
claim scope using words or expressions of manifest exclusion
or restriction." Liebel-Flarsheim Co. v. Medrad,
Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (internal
quotation marks omitted), aff'd, 481 F.3d 1371
(Fed. Cir. 2007). The specification "is not a substitute
for, nor can it be used to rewrite, the chosen claim
language." SuperGuide Corp. v. DirecTV Enters.,
Inc., 358 F.3d 870, 875 (Fed. Cir. 2004).
addition to the specification, a court "should also
consider the patent's prosecution history, if it is in
evidence." Markman, 52 F.3d at 980. The
prosecution history, which is also "intrinsic
evidence," "consists of the complete record of the
proceedings before the PTO [Patent and Trademark Office] and
includes the prior art cited during the examination of the
patent." Phillips, 415 F.3d at 1317.
"[T]he prosecution history can often inform the meaning
of the claim language by demonstrating how the inventor
understood the invention and whether the inventor limited the
invention in the course of prosecution, making the claim
scope narrower than it would otherwise be." Id.
also may rely on "extrinsic evidence," which
"consists of all evidence external to the patent and
prosecution history, including expert and inventor testimony,
dictionaries, and learned treatises." Markman,
52 F.3d at 980. For instance, technical dictionaries can
assist the court in determining the meaning of a term to
those of skill in the relevant art because such dictionaries
"endeavor to collect the accepted meanings of terms used
in various fields of science and technology."
Phillips, 415 F, 3d at 1318. In addition, expert
testimony can be useful "to ensure that the court's
understanding of the technical aspects of the patent is
consistent with that of a person of skill in the art, or to
establish that a particular term in the patent or the prior
art has a particular meaning in the pertinent field."
Id. Nonetheless, courts must not lose sight of the
fact that "expert reports and testimony [are] generated
at the time of and for the purpose of litigation and thus can
suffer from bias that is not present in intrinsic
evidence." Id. ("[C]onclusory, unsupported
assertions by experts as to the definition of a claim term
are not useful to a court."). Overall, while extrinsic
evidence may be useful to the court, it is less reliable than
intrinsic evidence, and its consideration "is unlikely
to result in a reliable interpretation of patent claim scope
unless considered in the context of the intrinsic
evidence." Id. at 1318-19.
"[t]he construction that stays true to the claim
language and most naturally aligns with the patent's
description of the invention will be, in the end, the correct
construction." 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).
CONSTRUCTION OF DISPUTED TERMS
determine the patentability of a claim, the court must read
the claim as a whole and consider every claim limitation.
In re Gulack,703 F.2d 1381, 1385 (Fed. Cir. 1983).
Consequently, "[differences between an invention and the
prior art cited against it cannot be ignored merely because
those differences reside in the content of. . . printed
matter." Id. However, a limitation claiming
printed matter is not given patentable weight unless it is
functionally or structurally related to the physical
substrate. Id. at 1384-85. The printed matter
doctrine is properly addressed during claim construction
because it is a legal inquiry ...