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Confluent Surgical, Inc. v. HyperBranch Medical Technology, Inc.

United States District Court, D. Delaware

March 7, 2019




         In this action filed by Plaintiff Confluent Surgical, Inc., Integra Lifesciences Corporation and Integra Lifesciences Sales LLC ("Plaintiffs") against Defendant HyperBranch Medical Technology, Inc. ("Defendant" or "HyperBranch"), presently before the Court is the matter of claim construction. The Court recommends that the District Court adopt the conclusion set forth below.

         I. BACKGROUND

         Plaintiffs filed the instant case on June 6, 2017. (D.I. 1) The case was thereafter referred to the Court to hear and resolve all pretrial matters, up to and including case-dispositive motions. (D.I. 8)

         In the currently-operative Amended Complaint, Plaintiffs are alleging that HyperBranch's Adherus AutoSpray Dural Sealant product and Adherus AutoSpray Extended Tip (ET) Dural Sealant product (the "accused products") infringe claims of seven patents-in-suit. (D.I. 40) The patents-in-suit relate to applicator assemblies for mixing components of, for example, a polymer or synthetic material for use in internal and external wound closure, and for dispensing the resulting mixture of components for application, for example as a bioadhesive or tissue sealant. (Id. at ¶ 22)

         The parties filed simultaneous opening claim construction briefs on August 14, 2018 and simultaneous responsive briefs on September 6, 2018. (D.I. 79; D.I. 81; D.I. 98; D.I. 101) The Court held a Markman hearing on October 5, 2018. (D.I. 120 (hereinafter, "Tr."))


         It is well-understood that "[a] claim in a patent provides the metes and bounds of the right which the patent confers on the patentee to exclude others from making, using, or selling the protected invention." Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed. Cir. 1989). Claim construction is a generally 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).

         The Court should typically assign claim terms their '"ordinary and customary meaning[, ]'" which is "the meaning that the term[s] 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 v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (citations omitted). However, when determining the ordinary meaning of claim terms, the Court should not extract and isolate those terms from the context of the patent; rather it should endeavor to reflect their "meaning to the ordinary artisan after reading the entire patent." Id. at 1321; see also Eon Corp. IP Holdings LLC v. Silver Spring Networks, Inc., 815 F.3d 1314, 1320 (Fed. Cir. 2016).

         In proceeding with claim construction, the Court should look first and foremost to the language of the claims themselves, because "[i]t 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, 415 F.3d at 1312 (internal quotation marks and citations omitted). For example, the context in which a term is used in a claim may be "highly instructive." /t/. at 1314. In addition, "[o]ther claims of the patent in question, both asserted and unasserted, can ... be valuable" in discerning the meaning of a particular claim term. Id. This is "[b]ecause claim terms are normally used consistently throughout the patent, [and so] the usage of a term in one claim can often illuminate the meaning of the same term in other claims." Id. Moreover, "[differences among claims can also be a useful guide [, ]" as when "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.

         In addition to the words of the claims, the Court should look to other intrinsic evidence. For example, the Court should analyze the patent specification, which "may reveal a special definition given to a claim term . . . that differs from the meaning [that term] would otherwise possess" or may reveal an intentional disclaimer of claim scope. Id. at 1316. Even if the specification does not contain such revelations, it "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." Id. at 1315 (internal quotation marks and citation omitted). That said, however, 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). And a court should also consider the patent's prosecution history, if it is in evidence, because it "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[.]" Phillips, 415 F.3d at 1317.

         Extrinsic evidence, "including expert and inventor testimony, dictionaries, and learned treatises[, ]" can also "shed useful light on the relevant art[.]" Id. (internal quotation marks and citations omitted). Overall, while extrinsic evidence may be useful, it is "less significant than the intrinsic record in determining the legally operative meaning of claim language." Id. (internal quotation marks and citations omitted); accord Markman v. Westview Instruments, Inc., 52 F.3d 967, 981 (Fed. Cir. 1995).

         In utilizing these resources during claim construction, courts should keep in mind that "[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).


         The parties currently have disputes regarding 15 terms or sets of terms (hereafter, "terms"). This Report and Recommendation addresses the first two terms: "dispensing a mixture" and "a system for mixing at least a first component and second component." The other terms will be addressed in forthcoming Report and Recommendations.

         The "dispensing a mixture" term appears in the preambles of the asserted claims of six of the patents; representative is claim 1 of United States Patent No. 8, 210, 453 (the "'453 patent"). The "system for mixing" term appears in the preamble of claim 19 of United States Patent No. 8, 033, 483 (the '"483 ...

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