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In re NeuroGrafix ('360) Patent Litigation

United States District Court, D. Massachusetts

May 25, 2018




         This circling of the wagons by defendant Brainlab against the Neurografix plaintiffs[1] is the final skirmish in this drawn-out multidistrict patent litigation. In a nutshell, Neurografix alleges that Brainlab, through the use of its FiberTracking software, directly and by inducement, infringes U.S. Patent No. 5, 560, 360 (the '360 patent). Fact and expert discovery now complete, Brainlab moves for a brevis judgment of noninfringement.

         “To support a summary judgment of noninfringement it must be shown that, on the correct claim construction, no reasonable jury could have found infringement on the undisputed facts or when all reasonable factual inferences are drawn in favor of the patentee.” Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1353 (Fed. Cir. 2001). “To establish literal infringement, all of the elements of the claim, as correctly construed, must be present in the accused system.” Id. Patent law also holds “[w]hoever actively induces infringement [to be] liable as an infringer.” 35 U.S.C. § 271(b). “[I]nducement requires evidence of culpable conduct, directed to encouraging another's infringement . . . .” DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1306 (Fed. Cir. 2006) (en banc in relevant part). “[L]iability for inducing infringement attaches only if the defendant knew of the patent and that ‘the induced acts constitute patent infringement.'” Commil USA, LLC v. Cisco Sys., Inc., 135 S.Ct. 1920, 1926 (2015), quoting Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011).

         The '360 patent is directed to, inter alia, obtaining “diagnostically useful images of neural tissue, ” '360 patent Abstract, by vector processing the output of magnetic resonant imaging (MRI) using certain diffusion-weighted pulse sequences.[2] The patented method distinguishes nerve tracts, including peripheral nerves, [3] which are anisotropic (water diffuses freely along a tract, but diffusion perpendicular to the tract is restricted) from surrounding tissue. Neurografix asserts claims 36-37, 39-42, 44, 46-47, and 49. Of these, claim 36 is an independent claim upon which the remaining asserted claims depend.

36. A method of utilizing magnetic resonance to determine the shape and position of a structure, said method including the steps of:
(a) exposing a region to a magnetic polarizing field including a predetermined arrangement of diffusionweighted gradients, the region including a selected structure that exhibits diffusion anisotropy and other structures that do not exhibit diffusion anisotropy;
(b) exposing the region to an electromagnetic excitation field;
(c) for each of said diffusion-weighted gradients, sensing a resonant response of the region to the excitation field and the polarizing field including the diffusion-weighted gradient and producing an output indicative of the resonant response; and
(d) vector processing said outputs to generate data representative of anisotropic diffusion exhibited by said selected structure in the region, regardless of the alignment of said diffusion-weighted gradients with respect to the orientation of said selected structure; and
(e) processing said data representative of anisotropic diffusion to generate a data set describing the shape and position of said selected structure in the region, said data set distinguishing said selected structure from other structures in the region that do not exhibit diffusion anisotropy.

         Brainlab contends that its FiberTracking software does not directly infringe claim 36 because (1) the software does not allow a user to target a “selected structure that exhibits diffusion anisotropy” as the subject of imaging prior to performing diffusion tractography, and (2) because FiberTracking does not “distinguish[ the] selected structure from other structures in the region that do not exhibit diffusion anisotropy, ” as required by step (e).

         FiberTracking instead “allows [the user] to track fiber structures in a defined region of interest [(ROI)], based on diffusion-weighted MR image [(DTI data)].” FiberTracking Manual § 11.1, Def.'s Ex. K (Dkt # 459-12). The user first defines a 3-dimensional ROI from anatomical images fused with DTI data. Id., see also Id. § 11.2.1. The user then sets two parameters - the FA Threshold and Minimum Length. Id. § 11.2.2. “The FA threshold is the minimum value of diffusion that will be considered for tracking fibers.” Id. “The Start Tracking function allows the software to track all fibers that intersect with the active regions of interest and meet the defined criteria (FA Threshold and Minimum Length).” Id. § 11.2.3. “Once the process is completed, the software displays the fibers in different colors according to the diffusion direction . . . .” Id.

         According to Brainlab, FiberTracking does not satisfy the “selected structure” limitation for two reasons. First, Brainlab argues that because the '360 patent is directed to improved imaging of peripheral nerves, “selected structure” is correspondingly so limited. In support, Brainlab points to dependent claims 64 and 66, which narrow “the selected diffusion anisotropic structure” to “a member of the group consisting of peripheral nerves, cranial nerves number three through twelve, and autonomic nerves.” Because FiberTracking only images white matter neural tracts within the brain and not peripheral nerves, it does not image “selected structure[s]” as claimed. Second, Brainlab argues that because FiberTracking “is focused on finding patient specific anisotropic structures that are not previously known, ” it does not permit the user to select a structure prior to imaging. Def.'s Mem. (Dkt # 456) at 4 (emphasis in original).

         Turning to the “distinguishing” limitation, Brainlab notes that FiberTracking displays all neural tracts within the ROI meeting the user-defined FA Threshold and Minimum Length requirements. The default FA Threshold value is .3, and FiberTracking does not permit the user to enter an FA Threshold value of zero (corresponding to no anisotropy). Thus, while FiberTracking distinguishes structures exhibiting greater or lesser degrees of ...

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