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Ethicon Endo-Surgery, Inc. v. Covidien LP

United States District Court, D. Massachusetts

June 21, 2018

ETHICON ENDO-SURGERY, INC., et al., Plaintiffs and Counterclaim-Defendants,
v.
COVIDIEN LP, et al., Defendants and Counterclaim-Plaintiffs.

          MEMORANDUM AND ORDER ON CLAIM CONSTRUCTION

          Leo T. Sorokin United States District Judge

         In this intellectual property dispute, Ethicon Endo-Surgery, Inc. and Ethicon Endo-Surgery, LLC (collectively, “Ethicon”), seek a declaratory judgment that one of their products does not infringe patents held by Covidien LP, Covidien Sales LLC, and Covidien AG (collectively, “Covidien”). Covidien has counter-sued, alleging infringement of a total of four of its patents: United States Patent Numbers 6, 585, 735 (“the '735 patent”), 8, 241, 284 (“the '284 patent”), 8, 323, 310 (“the '310 patent”), and 9, 241, 759 (“the '759 patent”).[1] In response, Ethicon has asserted invalidity and non-infringement as to each patent. This Court denied Covidien's request for a preliminary injunction. Pending now are the parties' briefs on claim construction. The Court has reviewed all relevant submissions and held a hearing on May 31, 2018, pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), at which it heard oral argument and technology tutorials.

         I. BACKGROUND

         The parties dispute the proper construction of ten terms appearing in claims disclosed in three of the patents in suit.[2] Each patent generally relates to features of advanced bipolar surgical instruments used to seal and cut tissue or blood vessels. Both Ethicon and Covidien produce and sell such instruments. The devices permit surgeons to grasp a vessel or tissue between two jaws at one end of the instrument, apply energy to the vessel or tissue to form a seal and stop the blood flow through it, then cut the sealed tissue using a knife that moves along the length of the jaws.

         The '284 patent, entitled “Vessel Sealer and Divider with Non-Conductive Stop Members, ” Doc. No. 121-2, [3] focuses on features of advanced bipolar surgical instruments which Covidien says are aimed at “providing more consistent sealing of blood vessels” by controlling “the gap distance” between the opposing jaws. Doc. No. 118 at 7. Claim 1 of the '284 patent discloses, in relevant part:

An endoscopic bipolar forceps, comprising: an elongated shaft having opposing jaw members at a distal end thereof, . . . each including respective flat seal surfaces extending along a respective length thereof . . .; a plurality of non-conductive stop members disposed along the length of at least one of the seal surfaces of at least one of the jaw members such that the plurality of non-conductive stop members are disposed along the same plane on the seal surface with respect to one another, the non-conductive stop members configured to maintain a uniform distance between the jaw members along the length thereof; and a knife . . . .

Doc. No. 121-2 at 23 (emphasis added).

         The figure below depicts the “distal end” of the device, where the jaws (labeled 20 and 22) are located, and includes “a series of stop members [labeled 50a and 50g] disposed along an inner facing surface of a jaw member.” Id. at 13, 19. There are six disputed terms from the '284 patent, each of which relates in some way to the stop members or the jaws.

         (Image Omitted)

         The '310 patent, entitled “Vessel Sealing Jaw with Offset Sealing Surface, ” Doc. No. 121-3, focuses on what Covidien describes as “the other critical mechanical parameter that affects proper vessel sealing—the pressure applied to the tissue, ” Doc. No. 118 at 21. The parties dispute the construction of only one term from this patent, and, for reasons explained below, no further description of its claims or language is necessary at this time.

         The '759 patent, entitled “Vessel Sealer and Divider for Use with Small Trocars and Cannulas, ” Doc. No. 121-5, focuses on what Covidien calls the “mechanical systems used . . . to actuate the jaw members and facilitate grasping and manipulating tissue and vessels, ” Doc. No. 118 at 30. Claim 1 of the '759 patent discloses, in relevant part:

An endoscopic bipolar forceps, comprising: a housing; a shaft . . .; a drive sleeve . . . operably coupled to the movable jaw member . . .; a movable handle of unitary construction having a finger loop positioned towards a first end thereof, a drive flange positioned towards a second end thereof, and a locking flange disposed between the finger loop and the drive flange, the drive flange operably coupled to the drive sleeve towards the proximal end of the drive sleeve such that movement of the movable handle from an open position to a closed position moves the movable jaw member relative to the fixed jaw member from the first position to the second position; a selectively advanceable knife . . .; and a selectively actuatable finger actuator . . . .

Doc. No. 121-5 at 39 (emphasis added).

         The figure below depicts the movable handle (labeled 40), among other parts contained in a device's housing, “separated” or in an “exploded view.” Id. at 12, 30, 36. The major components of the movable handle are the finger loop (labeled 41), the drive flange (labeled 47a and 47b), and the locking flange (labeled 44). Id. at 12, 31, 34. There are three disputed terms from the '759 patent, each of which relates in some way to the components of the movable handle.

         (Image Omitted)

         II. LEGAL STANDARD

         The “construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” Markman, 517 U.S. at 372. “It is a bedrock principle of patent law that the claims of a patent define the invention to which the patentee is entitled the right to exclude.” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (quotation marks omitted). The claim itself is “of primary importance, in the effort to ascertain precisely what it is that is patented.” Merrill v. Yeomans, 94 U.S. 568, 570 (1876); accord Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 339 (1961); Phillips, 415 F.3d at 1312.

         “[T]he words of a claim are generally given their ordinary and customary meaning, ” which is “the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention.” Phillips, 415 F.3d at 1312-13 (quotation marks omitted). Sometimes “the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction . . . involves little more than the application of the widely accepted meaning of commonly understood words.” Id. at 1314. Other times, though, when “the meaning of a claim term as understood by persons of skill in the art is . . . not immediately apparent, ” or when “patentees . . . use terms idiosyncratically, ” a court must consider “those sources available to the public” which shed light on how “a person of skill in the art would have understood [the] disputed claim language.” Id. (quotation marks omitted).

         A “person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.” Id. at 1313. Indeed, intrinsic evidence—the language appearing in the claims and elsewhere in the patent itself, as well as any available prosecution history of the patent—is the most reliable and useful evidence in determining the meaning of a patent's claims. Id. at 1317-19.

         Extrinsic evidence, including expert and inventor testimony, dictionaries, and treatises, may aid in understanding the underlying technology, how the invention works, and whether “a particular term . . . has a particular meaning in the pertinent field.” Id.; accord Markman v. Westview Instruments, Inc., 52 F.2d 967, 980 (Fed. Cir. 1995). Although a court may consider extrinsic evidence to the extent it is useful, it may not rely on such evidence to “change the meaning of claims in derogation of the” intrinsic evidence of record. Phillips, 415 F.3d at 1319.

         “[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.” Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2124 (2014). The burden is on the party challenging a patent to demonstrate indefiniteness by clear and convincing evidence. See Microsoft Corp. v. i4i Ltd. P'ship, 564 U.S. 91, 95 (2011). “Indefiniteness . . . is a question of law”; it “is a matter of claim construction, and the same principles that generally govern claim construction are applicable to determining whether allegedly indefinite claim language is subject to construction.” Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1319 (Fed. Cir. 2008). In some circumstances, courts decline to resolve questions of indefiniteness at the claim construction stage of litigation, deferring them until summary judgment when a fuller record is available. E.g., Indus. Tech. Research Inst. v. LG Elecs. Inc., No. 13-2016, 2014 WL 6907449, at *3 (S.D. Cal. Dec. 8, 2014); Int'l Dev. LLC v. Richmond, No. 09-2495, 2010 WL 4703779, at *6-7 (D.N.J. Nov. 12, 2010).

         III. DISCUSSION

         Guided by these principles—and having carefully reviewed the language of each relevant patent in its entirety, any cited prosecution history, and all other extrinsic evidence proffered by both parties—the Court will address each of the ten disputed terms in turn.

         A. “Stop member(s)” ('284 patent, claims 1, ...


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