United States District Court, D. Delaware
CONFLUENT SURGICAL, INC., INTEGRA LIFESCIENCES CORPORATION AND INTEGRA LIFESCIENCES SALES LLC, Plaintiffs,
HYPERBRANCH MEDICAL TECHNOLOGY, INC., Defendant.
REPORT AND RECOMMENDATION
CHRISTOPHER J. BURKE, UNITED STATES MAGISTRATE JUDGE
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.
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)
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)
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."))
STANDARD OF REVIEW
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).
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).
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.
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.
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).
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).
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
"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