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

United States District Court, D. Delaware

July 5, 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").[1] 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) Because HyperBranch contends that certain of the disputed claim terms addressed herein are indefinite, (see, e.g., D.I. 79 at 18-19), the Court further includes below the applicable standard for definiteness.

         The primary purpose of the definiteness requirement is to ensure that patent claims are written in such a way that they give notice to the public of what is claimed, thus enabling interested members of the public (e.g., competitors of the patent owner) to determine whether they infringe. All Dental Prodx, LLC v. Advantage Dental Prods., Inc., 309 F.3d 774, 779-80 (Fed. Cir. 2002). Put another way, "[a] patent holder should know what he owns, and the public should know what he does not." Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 731 (2002). Even so, the Supreme Court of the United States has recognized that "absolute precision is unattainable" and not required. Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910(2014).

         "[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." Id. at 901. Definiteness is to be evaluated from the perspective of a person of ordinary skill in the art ("POSA") at the time the patent was filed. Id. at 908.

         Like claim construction, definiteness is a question of law for the court. H-W Tech., L.C v. Overstock.com, Inc., 758 F.3d 1329, 1332 (Fed. Cir. 2014); Pi-Net Int'l Inc. v. JPMorgan Chase & Co., 42 F.Supp.3d 579, 586 (D. Del. 2014). The United States Court of Appeals for the Federal Circuit has stated that "[a]ny fact critical to a holding on indefiniteness ... must be proven by the challenger by clear and convincing evidence." Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357, 1366 (Fed. Cir. 2003); see also Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1338 (Fed. Cir.2008).[2]

         II. DISCUSSION

         The parties had disputes regarding 15 terms or sets of terms (hereafter, "terms"). The Court has addressed seven of these terms in previously-issued Report and Recommendations. (D.I. 177; D.I. 194; D.I. 216) The Court addresses three additional terms herein; the remaining terms will be addressed in a forthcoming Report and Recommendation.

         A. "elongated" / "elongated shaft" / "elongated member" / "elongated portion" (the "elongated body limitations" or "elongated body terms")

         Five of the asserted patents (the '478, '946, '468, '453 and '483 patents) require that the claimed applicator include an "elongated" body, recited in the claims as an "elongated shaft," "elongated member," or "elongated portion." (See D.I. 79 at 16) The use of the disputed terms in claim 19 of the '483 patent and claim 1 of the '453 patent is representative. (See, e.g., , Plaintiffs' Markman Presentation, Slides 37-38) Claim 19 of the '483 patent is reproduced below, with the disputed term highlighted:

19. A system for mixing at least a first component and a second component, the system comprising:
at least a first source of component and a second source of component;
a manifold configured for operable engagement with the at least first and second sources of component, the manifold including at least a first component channel and a second component channel therethrough;
an elongated shaft extending distally from the manifold, the elongated shaft including at least a first component lumen and a second component lumen extending the length thereof, the at least first and second component lumens in fluid communication with the at least first and second component channels;
a tip assembly defining a first chamber, an intermediate chamber and a final chamber, wherein the first chamber is configured to receive a distal end of the elongated shaft, the second chamber is configured to receive an insert, and the final chamber is configured to receive the at partially mixed at least first and second components prior to the mixture being ejected from an outlet defined in the distal end of the tip assembly; and,
an insert received in the second chamber, the insert including a substantially cylindrical member having a recess formed in a distal end thereof.

('483 patent, cols. 6:57-8:3 (emphasis added)) Claim 1 of the '453 patent is reproduced next, 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 and second source of component and a source of pressurized fluid;
a tip operably connected to the connector, the tip including an opening and defining a mixing chamber between the connector and the opening of the tip;
an elongated member extending between the connector and the tip, the elongated member including at least 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 fluid;
and an insert member configured to be received in the mixing chamber, the insert member including at least one radially extending slot on a first end of the insert and at least a one radially extending slot on a second end of the insert, each of the radially extending slots being configured to mix the first and second source of components prior to the combination exiting the opening in the tip.

('453 patent; col. 6:28-49 (emphasis added))

The parties' competing proposed constructions for the elongated body limitations are set out in the chart below:

Term

Plaintiffs' Proposed

Construction

Defendant's Proposed

Construction

"elongated"

"extended"

"longer in the longitudinal

dimension than in the

dimensions perpendicular to

the longitudinal axis"

"elongated shaft"

"structure containing lurnens

extending distally to the

applicator tip"

"a long, narrow body that is

longer in the longitudinal

dimension than in the

dimensions perpendicular to

the longitudinal axis"

"elongated member"

"structure of the spray

applicator extending between

the connector and applicator

tip"

"a part of an applicator that is

longer in the longitudinal

dimension than in the

dimensions perpendicular to

the longitudinal axis"

"elongated portion"

"structure of the spray

applicator extending between

the connector and the

applicator tip"

This term is indefinite. If it is

not indefinite, the term should

be given the following

construction:

"a part of an applicator that is

longer in the longitudinal

dimension than in the

dimensions perpendicular to

the longitudinal axis"

         (D.I. 79 at 16 (internal quotation marks omitted)) The parties' primary dispute with respect to the elongated body limitations is over the meaning of the word "elongated."[3] Plaintiffs assert that "elongated" means "extended," and that the word is used in the elongated body terms as a descriptor to underscore that these structures are extending from one structural element to another (i.e., they have spatial orientation with other structural elements). (D.I. 81 at 13; Tr. at 102, 104) HyperBranch argues that: (1) "elongated" is generally used to compare one dimension to another and that (2) with respect to the elongated body phrases, the term is used to describe the structures that are longer in the longitudinal dimension than in the dimensions perpendicular to the longitudinal axis. (D.I. 79 at 17; Tr. at 137-38)

         Below, the Court will first explain why Plaintiffs' proposals do not appropriately define the elongated body limitations. Then it will articulate why HyperBranch's proposed constructions are supported by the intrinsic and extrinsic record.

         1.Plaintiffs' Proposed Constructions

         Plaintiffs' proposed constructions are nullities which, if adopted, would improperly render the term "elongated" meaningless. Their proposals simply utilize language that is already clearly conveyed by other aspects of the claims.

         As just one example, if the Court were to adopt Plaintiffs' proposed constructions for "elongated member [, ]" the portion of the claim in which that term is found would read: "a[] [structure of the spray applicator extending between the connector and applicator tip] extending between the connector and the tip." Thus, as HyperBranch points out, when the "unnecessary and redundant description of how the elongated [member] is situated with respect to other elements is stripped from Plaintiffs' construction of the" elongated body terms, all that is left is "structure" or "structure of the spray applicator." (D.I. 98 at 11-12; see also D.I. 79 at 18) Such a descriptor gives no meaning to the term "elongated"-a term that the patentee chose to include in the claims. See Merck & Co., Inc. v. leva Pharms. USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005) ("A claim construction that gives meaning to all the terms of the claim is preferred over one that does not do so."); see also Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1562 (Fed. Cir. 1991) ("All the limitations of a claim must be considered meaningful[.]"). Indeed, Plaintiffs' proposed constructions could encompass any "structure," including non-elongated structures such as a cube or a disk. (D.I. 79 at 18; D.I. 98 at 12)

         During the Markman hearing, the Court questioned Plaintiffs about this problem, asking "[i]f elongated and extended mean the same thing, why wouldn't [claim 1 of the '453 patent] just say [for example] 'a member extending'?" (Tr. at 105) In response, Plaintiffs asserted that the patentee was just using "elongated" in the elongated body terms as a "name[, ]" a "descriptor[, ]" to "describe that this is a [member/shaft/body/portion] which is going to have a spatial relationship between [such a body and] what follows[.]" (Id. at 104-05; see also id.&t 113 (Plaintiffs' counsel reasserting that "elongated is used as part of a name for the body, portion, whatever, it extends from the connector manifold to the tip"))

         This explanation is not persuasive. This is apparent by looking, for example, to claim 7 of the '478 patent. That claim recites: "[t]he spray assembly of claim 6, further including a connector extending proximally from and operably connected to the body." ('478 patent, col. 7:19-21 (emphasis added)) If the patentee chose to use "elongated" as a name for a structure that extended to another portion of the spray applicator, why did he not do the same for the term "a connector extending proximally from and operably connected to the body" found in claim 7?

         Indeed, Plaintiffs' proposed construction for that "connector extending ..." term further highlights how their constructions for the elongated body terms infuse no meaning into the modifier "elongated." For the "connector extending . . ." term, Plaintiffs' proposed construction is "structure of the applicator extending toward a source of component and joined with and capable of operating with the structure of the spray applicator defining a lumen[, ]" (D.I. 81 at 17)-i.e., a construction that is "fundamentally the same as [Plaintiffs'] proposed constructions for other separate 'elongated' body ...


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