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Exergen Corp. v. Thermomedics, Inc.

United States District Court, D. Massachusetts

September 15, 2015

EXERGEN CORP., Plaintiff,
v.
THERMOMEDICS, INC., et al., Defendants

          For Exergen Corporation, Plaintiff, Counter Defendant: Kerry L. Timbers, Meredith L. Ainbinder, Robert M. Asher, LEAD ATTORNEYS, Brandon T. Scruggs, Joel R. Leeman, Sharona H. Sternberg, Sunstein Kann Murphy & Timbers LLP, Boston, MA.

         For Thermomedics, Inc., Defendant, Counter Claimant: Timothy Devlin, LEAD ATTORNEY, Devlin Law Firm, Wilmington, DE.

         For Sanomedics International Holdings, Inc., Defendant: Timothy Devlin, LEAD ATTORNEY, PRO HAC VICE, Devlin Law Firm, Wilmington, DE. Robert S. Messinger, Nystrom Beckman & Paris LLP, Boston, MA.

         For Sanomedics International Holdings, Inc., Counter Claimant: Timothy Devlin, LEAD ATTORNEY, Devlin Law Firm, Wilmington, DE. Robert S. Messinger, Nystrom Beckman & Paris LLP, Boston, MA.

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         MEMORANDUM AND ORDER

         Denise J. Casper, United States District Judge.

         I. Introduction

         Plaintiff Exergen Corporation (" Exergen" ) has filed this lawsuit against Defendants Sanomedics International Holdings, Inc., and Thermomedics, Inc., (collectively, " Defendants" ) alleging patent infringement. D. 1, 17. Defendants have moved for summary judgment on the affirmative defense that the asserted patent claims are invalid. D. 83, D. 84. For the reasons stated below, the Court ALLOWS Defendants' motion for summary judgment of invalidity under 35 U.S.C. § 101, D. 83, and DENIES as moot Defendants' remaining

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arguments for invalidity under 35 U.S.C. § 102 and/or § 103, D. 84.

         II. Standard of Review

         The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). " A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), but " must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano--Isern, 605 F.3d 1, 5 (1st Cir. 2010). " As a general rule, that requires the production of evidence that is 'significant[ly] probative.'" Id. (quoting Anderson, 477 U.S. at 249) (alteration in original). The Court " view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

         III. Factual Background

         Exergen asserts that Defendants' Caregiver Non-Contact Thermometer has infringed four claims of United States Patent No. 7,787,938 (the " '938 patent" ). The '938 patent, invented by Dr. Francisco Pompei, Exergen's Chief Executive Officer, describes a method of measuring an individual's body temperature based upon radiation and temperature measurements taken at the temporal artery at the side of the forehead. The patent sets forth mathematical formulas for converting the measurements into a skin surface temperature reading and then converting the skin surface temperature into an approximation of the subject's core body temperature, taking into account the ambient air temperature. D. 86-1.

         A high-accuracy forehead thermometer had previously not been available due to the challenges presented by the forehead's exposure to varying ambient air temperatures. D. 97-1 ¶ 7. The forehead was targeted because Exergen sought a measurement site that was less invasive than regions targeted by earlier thermometers, such as the eardrum or rectum. D. 97-2 ¶ 7. Temperature measurement at these more invasive sites was time consuming, uncomfortable for patients and inconvenient in clinical environments. D. 97-7 at 33.

         Exergen asserts independent claims 51 and 54 and respective dependent claims 52 and 55 of the '938 patent. The independent claims each include a measuring element that involves measuring surface temperature or radiation and a processing element that involves converting that measurement to a core temperature approximation. Claim 51 recites:

A method of detecting human body temperature comprising: measuring temperature of a region of skin of the forehead; and processing the measured temperature to provide a body temperature approximation based on heat flow

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from an internal body temperature to ambient temperature.

         D. 86-1 at 16. Claim 54 recites:

A method of detecting human body temperature comprising: measuring radiation as target skin surface of the forehead is viewed, and processing the measured radiation to provide a body temperature approximation based on heat flow from an internal body temperature to ambient temperature.

Id. The two asserted dependent claims, claims 52 and 55, each limit their corresponding independent claims to a " region of skin over ...


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