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In re Body Science LLC

United States District Court, D. Massachusetts

February 24, 2016



F. Dennis Saylor IV United States District Judge.

This is a patent dispute involving electronic systems that are used for wireless monitoring of patient body functions. Plaintiff Body Science LLC holds U.S. Patent No. 6, 289, 238 (the “’238 patent”) and U.S. Patent No. 7, 215, 991 (the “’991 patent”), both entitled “wireless medical diagnosis and monitoring equipment.” Body Science has brought suit for infringement of the patents against defendant Polar Electro Inc.[1] Polar has asserted multiple defenses, including claims of non-infringement and invalidity.

The litigation is now at the claim construction stage. The parties initially agreed on the construction of four terms: (1) “evaluation station” and “evaluator station, ” defined as a “device with an identified collection of components that detects or determines a property of data”; (2) “sensor for detecting an electric, physical, chemical or biological quantity, and converting the detected quantity into an electric signal” and “sensor . . . operable to detect an electric, physical, chemical or biological property associated with the patient, and operable to convert the detected property into an electric signal, ” defined as a “component that detects a property of the patient and can convert it into an electric signal”; (3) “control the data, ” “operative to control, ” and “operable to control, ” defined as “changing the transmission power of the data or changing the channel of the data (as opposed to manipulate or format the data)”; and (4) “electrode, ” defined as “a device that includes the identified collection of electronic components.”[2]

The Court has construed five additional terms: (1) “manipulate the data, ” defined as “change values of the digital representation of the data to reduce errors (as opposed to control or format the data)”; (2) “formatting data, ” defined as “modifying the digital representation of the data (but not manipulating or controlling the data)”; (3) “change the format of the digital data, ” defined as “modify the digital representation of the data (as opposed to manipulate or control the data)”; (4) “attached to the patient” and “arranged on the patient, ” defined according to their plain and ordinary meaning; and (5) “covering comprising, ” defined according to its plain and ordinary meaning. In re Body Science LLC Patent Litig., 2014 WL 5313861 (D. Mass. Oct. 17, 2014).

The parties now dispute the construction of two additional terms: (1) “patient” and (2) “converter.” The parties also now dispute whether “evaluator station” is an element of claim 1 of the ’991 patent.

I. Background

A. Factual Background

On September 11, 2001, the United States Patent and Trademark Office (“PTO”) issued the ’238 patent, which is a continuation of U.S. Patent No. 5, 957, 854 (filed Dec. 5, 1997), which, in turn, is a continuation of U.S. Patent No. 5, 862, 803 (filed Sep. 2, 1994). On May 8, 2007, the PTO issued the ’991 patent, which is a continuation of the ’238 patent, as well as a continuation of U.S. Patent No. 6, 577, 893 (filed June 15, 2001). The ’238 patent covers a “medical diagnosis and monitoring system” with “wireless electrodes” that “comprise a digital transmitting and receiving unit” and that “can be used, among other things, for detecting EEG- and EKG-signals, as well as for monitoring body/breathing movements, the temperature, perspiration, etc.” of a patient. U.S. Patent No. 6, 289, 238, at [57] (filed Aug. 24, 1999).

Similarly, the ’991 patent covers a “medical diagnosis and monitoring system having at least one sensor for detecting an electrical, physical, chemical, or biological property of a patient such as, but not limited to, EEG- and EKG-signals, respiration, oxygen saturation, temperature, perspiration, etc.” U.S. Patent No. 7, 215, 991, at [57] (filed Mar. 24, 2003). The claimed invention has two major components: (1) an electrode or sensor that is attached to the patient and detects certain physical properties of the patient and (2) an evaluation station that communicates with that electrode and presents the detected information about the patient. Generally, the invention is intended to be used in medical settings to monitor patients while utilizing two-way wireless communication to maintain both freedom of movement of the patient and the accuracy of the reported data.

Body Science owns the ’238 and ’991 patents. Defendant Polar manufactures and sells allegedly infringing products.[3]

B. Procedural Background

On May 27, 2011, Body Science filed five separate actions, one each in the Northern District of California, the Northern District of Illinois, the District of Minnesota, the Eastern District of New York, and this Court. On August 6, 2012, pursuant to 28 U.S.C. § 1407, the Judicial Panel on Multidistrict Litigation transferred the cases to this Court for consolidated pre-trial proceedings.[4] On July 31, 2014, the Court held a first Markman hearing on four disputed terms in the claims, and issued a memorandum and order construing those terms on October 17, 2014. In re Body Science LLC Patent Litig., 2014 WL 5313861 (D. Mass. Oct. 17, 2014).

Following that decision, the parties informed the Court that new claim construction issues had arisen during the course of expert discovery. The Court then held a second Markman hearing on the three newly disputed issues.

II. Legal Framework

The construction of claim terms is a question of law. Markman v. Westview Instruments, 517 U.S. 370, 372 (1996) (“[T]he construction of a patent, including terms of art within its claim, is exclusively within the province of the court.”).

In Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc), the Federal Circuit clarified the proper approach to claim construction and set forth principles for determining the hierarchy and weight of the definitional sources that give a patent its meaning. The guiding principle of construction is “the meaning that the term would have to a person of ordinary skill in the art in question at the time of . . . the effective filing date of the patent application.” Id. at 1313. Courts thus seek clarification of meaning in “the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Id. at 1314 (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., 381 F.3d 1111, 1116 (Fed. Cir. 2004)).

A. The Words of the Claim

The claim construction analysis normally begins with the claims themselves.[5] The claims of a patent “define the invention to which the patentee is entitled the right to exclude.” Phillips, 415 F.3d at 1312 (citing Innova, 381 F.3d at 1115).

A court may construe a claim term to have its plain meaning when such a construction resolves a dispute between the parties. See O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008); see also U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) (“Claim construction is a matter of resolution of disputed meanings and technical scope, to clarify and when necessary to explain what the patentee covered by the claims, . . . [but] is not an obligatory exercise in redundancy.”).

In some instances, it is the arrangement of the disputed term in the claims that is dispositive. “This court’s cases provide numerous . . . examples in which the use of a term within the claim provides a firm basis for construing the term.” Phillips, 415 F.3d at 1314. For example, because claim terms are normally used consistently throughout the patent, the meaning of a term in one claim is likely the meaning of that same term in another. Id. In addition, “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.

B. The Specification

“The claims, of course, do not stand alone.” Id. at 1315. Rather, “they are part of a fully integrated written instrument, consisting principally of a specification that concludes with the claims.” Id. (internal citations and quotations omitted). For that reason, the specification must always be consulted to determine a claim’s intended meaning. “[T]he specification 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. (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).

“In general, the scope and outer boundary of claims is set by the patentee’s description of his invention.” On Demand Mach. Corp. v. Ingram Indus., 442 F.3d 1331, 1338 (Fed. Cir. 2006); see also Phillips, 415 F.3d at 1315-17 (“[T]he interpretation to be given a term can only be determined and confirmed with a full understanding of what the inventors actually invented and intended to envelop with the claim.”) (quoting Renishaw, 158 F.3d at 1250). “[T]he specification may reveal a special definition given to a claim term by the patentee that differs from the meaning it would otherwise possess.” Phillips, 415 F.3d at 1316. It may also reveal “an intentional disclaimer, or disavowal, of claim scope by the inventor.” Id. Therefore, the claims are to be construed in a way that makes them consistent with, and no broader than, the invention disclosed in the specification. On Demand, 442 F.3d at 1340 (“[C]laims cannot be of broader scope than the invention that is set forth in the specification.”); Phillips, 415 F.3d at 1316 (“[C]laims must be construed so as to be consistent with the specification, of which they are a part.”).

Nevertheless, courts must be careful to “us[e] the specification [only] to interpret the meaning of a claim” and not to “import[] limitations from the specification into the claim.” Id. at 1323; see also Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1375 (Fed. Cir. 2005) (internal quotations omitted). A patent’s “claims, not specification embodiments, define the scope of patent protection.” Kara Tech. Inc. v. Inc., 582 F.3d 1341, 1348 (Fed. Cir. 2009); see also Martek Biosciences Corp. v. Nutrinova, Inc., 579 F.3d 1363, 1381 (Fed. Cir. 2009) (“[E]mbodiments appearing in the written description will not be used to limit claim language that has broader effect.”). “In particular, we have expressly rejected the contention that if a patent describes only a single embodiment, the claims of the patent must be construed as being limited to that embodiment.” Phillips, 415 F.3d at 1323. This is “because persons of ordinary skill in the art rarely would confine their definitions of terms to the exact representations depicted in the embodiments.” Id.

Although this distinction “can be a difficult one to apply in practice[, ] . . . the line between construing terms and importing limitations can be discerned with reasonable certainty and predictability if the court’s focus remains on understanding how a person of ordinary skill in the art would understand the claim terms.” Id. Ultimately, “[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.” Id. at 1316 (citing Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998)).

C. The Prosecution History

After the specification and the claims themselves, the prosecution history is the next best indicator of term meaning. The prosecution history consists of the complete record of the proceedings before the PTO and includes the prior art cited during the examination of the patent. Id. at 1317. “Like the specification, the prosecution history provides evidence of how the PTO and the inventor understood 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. (citing Vitronics, 90 F.3d at 1582-83).

However, “because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes.” Id. As a result, courts generally require that “a patent applicant [] clearly and unambiguously express surrender of [a] subject matter” to disavow claim scope during prosecution. Voda v. Cordis Corp., 53 ...

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