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Acantha LLC v. Depuy Synthes Sales, Inc.

United States District Court, E.D. Wisconsin

March 13, 2017

ACANTHA LLC, Plaintiff,
v.
DEPUY SYNTHES SALES, INC., et al., Defendants.

          DECISION ON CLAIM CONSTRUCTION

          William C. Griesbach, Chief Judge.

         In this action for patent infringement, Plaintiff Acantha, LLC accuses Defendants DePuy Synthes Sales, Inc., DePuy Synthes Products, Inc., DePuy Synthes, Inc., Johnson & Johnson, Inc., Synthes, Inc., Synthes USA, LLC, DePuy Orthopaedics, Inc., and DePuy Spine, LLC of infringing its patent: U.S. Reissued Patent No. RE43, 008 (the ‘008 Patent). The case is before the Court for claim construction following briefing and a Markman hearing.

         LEGAL STANDARD GOVERNING CLAIM CONSTRUCTION

         A patent includes both a written description of the invention and claims. The written description, which usually includes figures, is often referred to as the “specification” of the patent. The specification ends with one or more numbered sentences that are the patent's “claims.” These claims describe the invention and set forth the metes and bounds of the patent.

         Claim construction is an issue of law for the Court. If a material issue in the case, such as infringement or validity, involves a dispute about the meaning of certain claim language, the Court needs to construe that disputed claim language. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). The only claim language that needs to be construed is the language “in controversy, and only to the extent necessary to resolve the controversy.” Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).

         Claim construction begins with and focuses on the words of the claim. See Bell Commc'ns Research, Inc. v. Vitalink Commc'ns Corp., 55 F.3d 615, 619-20 (Fed. Cir. 1995). How a person of ordinary skill in the art understands those claim terms provides an objective baseline for claim construction. Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc). In attempting to determine the meaning of disputed claim language, the Court must look to “those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean.” Id. at 1314. “Those sources include the words of the claims themselves, the remainder of the specifications, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Id. (internal quotation marks omitted). Extrinsic evidence includes sources such as the testimony of experts and knowledgeable technical witnesses, dictionaries, and learned treatises. Id. at 1317-18. Extrinsic evidence is “less significant” and “less reliable” than the intrinsic record in determining the meaning of the claim language. Id. Thus, to the extent that the Court considers extrinsic evidence, it does so in the context of the intrinsic evidence and is cognizant of “the flaws inherent” in such evidence. Id. at 1319.

         “The claims, not specification embodiments, define the scope of patent protection. The patentee is entitled to the full scope of his claims” and is not limited “to his preferred embodiment” and the Court will not “import a limitation from the specification into the claims.” Kara Tech. Inc. v. Stamps.com Inc., 582 F.3d 1341, 1348 (Fed. Cir. 2009); Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (cautioning “against confining the claims to [preferred] embodiments.”). Even where “a patent describes only a single embodiment, the claims should not be construed as limited to that embodiment” absent a clear disavowal of claim scope. Phillips, 415 F.3d at 1323; see also Linear Tech Corp. v. ITC, 566 F.3d 1049, 1057-58 (Fed. Cir. 2009) (explaining that it is improper to limit a claim to embodiments described in the specification where “there is no clear intention to limit the claim scope”).

         The Court may also consider the patent's prosecution history, including reexamination proceedings. Phillips, 415 F.3d at 1317. The prosecution history, which is part of the “intrinsic evidence, ” consists of the “complete record of the proceedings before the USPTO and includes the prior art cited during the examination of the patent.” Id. “[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. The prosecution history includes any arguments or amendments made by the applicant in securing patent rights and these arguments and amendments may be considered during the claim construction process. Southwall Techs. Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed. Cir. 1995). The correct claim construction must be consistent with the arguments the applicant made to overcome a prior art rejection. See id.

         CLAIM CONSTRUCTION AND ANALYSIS

         The ‘008 Patent describes an “orthopedic implant assembly comprising a stabilizing element, a securing element which attaches the stabilizing element to the bone, and a stopping member in the stabilizing element which inhibits the securing element from loosening or backing out of the bone.” (‘008 Patent Abstract, ECF No. 1-3.) As a preliminary matter, I adopt all of the “Agreed Constructions” as set forth by the parties as follows:

Term

Agreed Construction

enlarged integral portion

Portion of the securing [element/member] having a larger diameter than that of the elongated body of the securing [element/member]

head

Portion of the securing member anterior to the elongated body

groove

Plain and ordinary meaning

         The parties have disputes over certain terms in the ‘008 Patent, as will be discussed below.

         A. Anterior/Posterior

Term

Plaintiff's Proposed Construction

Defendants' Proposed Construction

Court's Construction

anterior bore portion/section of the transverse passageway

(No construction necessary) Alternatively: outer portion of the bore farther away from the bone

Portion of the bore above the posterior surface of the stopping member

No construction necessary

posterior bore portion/section of the transverse passageway

(No construction necessary) Alternatively: inner portion of the bore closer to the bone

Portion of the bore below the posterior surface of the stopping member

No construction necessary


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