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

United States District Court, D. Delaware

May 21, 2019

CONFLUENT SURGICAL, INC., INTEGRA LIFESCIENCES CORPORATION AND INTEGRA LIFESCIENCES SALES LLC, Plaintiffs,
v.
HYPERBRANCH MEDICAL TECHNOLOGY, INC., Defendant.

          REPORT AND RECOMMENDATION

          CHRISTOPHER J. BURKE UNITED STATES MAGISTRATE JUDGE.

         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"), Plaintiffs allege infringement of United States Patent Nos. 9, 517, 478 (the '"478 patent"), 8, 210, 453 (the "'453 patent"), 8, 876, 021 (the '"021 patent"), 8, 033, 483 (the '"483 patent"), 8, 616, 468 (the '"468 patent"), 9, 101, 946 (the '"946 patent"), and 9, 700, 290 (the '"290 patent") (collectively, "the asserted patents" or "the patents-in-suit"). Presently before the Court is the matter of claim construction. The Court recommends that the District Court adopt the constructions as set forth below.

         I. BACKGROUND AND STANDARD OF REVIEW

         The Court hereby incorporates by reference the summary of the background of this matter set out in its March 7, 2019 Report and Recommendation ("March 7 R&R"). (D.I. 177 at 1-2) It additionally incorporates by reference the legal principles regarding claim construction set out in the March 7 R&R. (Id. at 2-4)

         II. DISCUSSION

         The parties had disputes regarding 15 terms or sets of terms (hereafter, "terms"). The March 7 R&R addressed the first two terms. The Court addresses terms 3, 4 and 5 herein. The remaining terms will be addressed in a forthcoming Report and Recommendation(s).

         A. "vent lumen"

          The claim term "vent lumen" appears in the asserted claims of the '946 and the '468 patents.[1] (See D.I. 81 at 3) The use of the disputed term in claim 1 of the '946 patent and claim 1 of the '468 patent is representative. Claim 1 of the '946 patent is reproduced below, with the disputed term highlighted:

1. A spray assembly for dispensing a mixture, the spray assembly comprising:
a connector portion configured for operable engagement with a first source of component, a second source of component, and a source of pressurized air;
an elongated portion extending distally from the connector portion, the elongated portion including an inner shaft and an outer sleeve, the inner shaft and the outer sleeve defining a vent lumen therebetween, the inner shaft defining a first lumen configured for fluid communication with the first source of component, a second lumen configured for fluid communication with the second source of component, and a third lumen configured for fluid communication with the source of pressurized air;
a tip assembly operably connected to the elongated portion, the tip assembly defining an opening and a mixing chamber between a distal end of the elongated portion and the opening of the tip assembly; and
an insert member received in the mixing chamber, a distal end of the insert member defining an annular recess and at least one radially extending slot, the annular recess and the at least one radially extending slot operating to mix first and second components prior to a combination of first and second components exiting the opening in the tip assembly.

         ('946 patent, col. 6:27-51 (emphasis added)) Claim 1 of the '468 patent is reproduced next, again with the disputed term highlighted:

1. A spray assembly for dispensing a mixture, the assembly comprising:
a connector configured for operable engagement with a first source of component and a second source of component;
an elongated member operably connected to and extending distally from the connector, the elongated member including an inner shaft and an outer sleeve, and defining a vent lumen between the inner shaft and outer sleeve, the inner shaft defines at least a first lumen configured for fluid communication with the first source of component and a second lumen configured for fluid communication with the second source of component;
a tip operably connected to the connector, the tip including an opening and defining a mixing chamber between a distal end of the elongated member and the opening of the tip; and
an insert member configured to be received in the mixing chamber, the insert member defining at least one radially extending slot on a first end of the insert member and at least one radially extending slot on a second end of the insert member, each of the radially extending slots being configured to mix the first and second components prior to the combination exiting the opening in the tip.

         ('468 patent, col. 6:25-48 (emphasis added))

         The parties' competing proposed constructions for the term are set out in the chart below:

Term

Plaintiffs' Proposed Construction

Defendant's Proposed Construction

"vent lumen"

"a passageway for air or fluid extending along the elongated portion between the inner shaft and outer sleeve"

"a passageway or cavity within a hollow body designed to release or discharge excess gas pressure at a surgical site to the open atmosphere by providing fluid communication between at least two external openings. An 'air lumen' is not a 'vent lumen.'"

         (See, e.g., D.I. 81 at 3) The Court will first explain why Plaintiffs' proposal does not appropriately define "vent lumen," and will then assess HyperBranch's proposal.

         1. Plaintiffs' Proposed Construction

         As an initial matter, the Court easily concludes that the second portion of Plaintiffs' proposed construction-"extending along the elongated portion between the inner shaft and outer sleeve"-is unnecessary, because it is redundant of other language contained in the claims. That is, other portions of the claims already tell us that the "vent lumen" extends along the elongated portion between the inner shaft and outer sleeve, and there is no need to repeat these details in the construction for "vent lumen" itself. (See, e.g., D.I. 98 at 2; Tr. at 32-33; Plaintiffs' Markman Presentation, Slides 10-11) With this language stripped away, we are left with: "a passageway for air or fluid[.]"

         HyperBranch argues that if "vent lumen" were construed to mean "a passageway for air or fluid[, ]" that would give no meaning to the modifier vent in the term. (D.I. 98 at 2-3; see also, e.g., D.I. 101 at 3 (Plaintiffs suggesting that "any lumen through which air flows" could be a "vent lumen")) That construction, HyperBranch asserts, is one that would apply to any lumen- but here, the term that the patentees chose for their claims, and the term that needs to be construed, is "vent lumen[.]" (Tr. at 33; see also D.I. 79 at 5) The Court agrees that the construction for "vent lumen" must give meaning to all of the words in that term, including the word "vent"; therefore, the term must mean more than merely "a passageway for air or fluid." Cf. Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006) ("Allowing a patentee to argue that physical structures and characteristics specifically described in a claim are merely superfluous would render the scope of the patent ambiguous, leaving examiners and the public to guess about which claim language the drafter deems necessary to his claimed invention and which language is merely superfluous, nonlimiting elaboration. For that reason, claims are interpreted with an eye toward giving effect to all terms in the claim.").

         Plaintiffs respond by arguing that their proposal does not ignore "vent"-instead, they claim that their proposal "recognizes that a 'vent lumen' is simply a passageway that allows air or fluid to flow to equalize pressure.'" (D.I. 101 at 2 (emphasis added); see also Tr. at 73 ("All that you need for a vent lumen is [a] passageway for . . . where [fluid] will be able to ... go to equalize."); id. ("The vent lumen has to be one which is going to allow fluid or air to go through it, to be able to equalize it."); id. at 74; id, at 76 ("[A vent] just allows the pressure to dissipate as you go along one side."); id. at 81 ("[W]hat it means to vent is to allow [the air/fluid] to move from the high pressure down to the lower pressure by the fluid flow[.]") Yet there are at least two problems with Plaintiffs' position.

         One problem is that there is nothing in the actual language of Plaintiffs' proposed construction that reflects this notion of "equalizing pressure." (See Tr. at 97-98) When pressed about this during the Markman hearing, Plaintiffs' counsel argued that it was unnecessary to include language getting to what "vent" means in their proposed construction, because "[i]n the law of physics, that's the way it's going to work .... [the air/fluid is] going to flow through, and a person of ordinary skill in the art would know that." (Id. at 77) In light of this, Plaintiffs contend, "[a]ny passageway for air or fluid would amount to [one that equalizes pressure in this way]." (Id.) But this does not seem particularly persuasive. The patents describe different lumens that each constitute passageways for air or fluid. For example, claim 1 of the '946 patent recites, in addition to the "vent lumen[, ]" "a first lumen configured for fluid communication with the first source of component, a second lumen configured for fluid communication with the second source of component, and a third lumen configured for fluid communication with the source of pressurized air[.]" ('946 patent, col. 6:36-40; see also id, at col. 3:35-51 (the specification discussing an embodiment that contains, in addition to the "vent lumen," the "first and second component lumen" as well as an "air lumen")) According to Plaintiffs' explanation, all of these lumens would constitute vent lumens. Yet that does not seem like the correct outcome, in light of the fact that there is a separately claimed lumen called a "vent lumen" that is also part of the invention. (See HyperBranch's Markman Presentation, Slides 222-23)

         Second, there is no real support for Plaintiffs' "equalizing pressure" rationale in the record. In support of this argument, Plaintiffs cite to three paragraphs from the declaration of their expert, Dr. Bruce Kent Gale. (D.I. 101 at 2 (citing D.I. 102 at ¶¶ 3-5)) The key paragraph seems to be paragraph 5 (as paragraph 3 does not mention anything about pressure, and paragraph 4 asserts Dr. Gale's opinion as to why HyperBranch's construction is wrong). In Paragraph 5, Dr. Gale asserts that an "air lumen" can be a "vent lumen[, ]"[2] opining that:

I disagree with HyperBranch's and [its expert] Dr. Hattan's contention that an "air lumen" cannot be a "vent lumen." In my opinion, a POSITA understands that a lumen would allow air or fluid to flow therein in either direction in the spray assembly depending on whether the pressure was higher on the supply side or on the tip end. This concept is illustrated in the . . . figure below. If the pressure is higher at the supply side than at the tip end, then air would flow through the lumen to the tip. If the pressure is higher at the tip end than at the supply side, then air would flow back through the lumen from the tip and thus vent.

         (D.I. 102 at ¶ 5) The figure referenced in this paragraph is below:

         (Image Omitted)

         Yet Dr. Gale's explanation here is not robust, and in it, he never uses the phrase "equalizing pressure"-i.e., he does not, for instance, explicitly opine that a "vent lumen" is "a passageway that allows air or fluid to flow to equalize pressure." Rather, instead of giving meaning to the term "vent" in "vent lumen," Dr. Gale's opinion seems to suggest that any lumen is a vent lumen-merely a passageway that allows fluids or air to flow in either direction.

         In a later paragraph in his report (one regarding a prior art reference known as Maslanka that will be discussed further below), Dr. Gale also suggests that a "vent lumen" is something found only in an "air assist sprayer[, ]" though he does not provide further explanation as to why this is so. (Id., at ¶ 7) During the Markman hearing, Plaintiffs' counsel argued that "in order to have a vent lumen, you have to have either an air [or] fluid assisted sprayer. ... a vent lumen is necessary in an air assisted sprayer to vent the air that's being provided to dispense the combination of the components." (Tr. at 80-82; id, at 89 (Plaintiffs' counsel reiterating their view that Maslanka lacks a vent lumen because "Maslanka was not [an] air assisted [sprayer] . . . and [accordingly] there was no reason to be able to vent the air to equalize the pressure"); id. at 92) From Plaintiffs' evolving arguments, then, a "vent lumen" seems to be any lumen in an air- assisted sprayer in which fluid or air flows through, thus "equalizing] pressure" and "vent[ing] the air that's being provided to dispense the combination of the components." But again, Plaintiffs point to little in the record to support such a proposal. And that lack of record support renders Plaintiffs' proposal a black hole-one that injects uncertainty into the claim construction process. (See, e.g., Tr. at 93, 95 (HyperBranch's counsel asserting that he "really do[es not] know what [Plaintiff] means [by equalizing pressure].. . . When they are talking about equalizing pressure, I have no idea what that means because equalizing what? . . . [E]qualize has a connotation of you're going to allow the pressure in one thing to come to the same pressure."))

         For all of these reasons, the Court is not persuaded that the first portion of Plaintiffs' proposed construction for "vent lumen"-"a passageway for air or fluid"-sufficiently conveys what a vent lumen actually is. And so it will adopt no part of Plaintiffs' proposed construction for this term.

         2. HyperBranch's ...


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