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MedIdea, L.L.C. v. Depuy Orthopaedics, Inc.

United States District Court, D. Massachusetts

November 15, 2019

MEDIDEA, L.L.C., Plaintiff,
v.
DEPUY ORTHOPAEDICS, INC. et al., Defendants.

          MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT (DOC. NO. 190)

          LEO T. SOROKIN UNITED STATES DISTRICT JUDGE

         MedIdea, L.L.C. brought this patent infringement action against DePuy Orthopaedics, Inc., DePuy Synthes Products, Inc., and DePuy Synthes Sales, Inc. d/b/a DePuy Synthes Joint Reconstruction (collectively, “DePuy”) alleging that DePuy's Attune® knee replacement system infringes several claims of four related MedIdea patents, all of them entitled “Multiple-Cam, Posterior-Stabilized Knee Prosthesis, ” and all relating generally to total knee replacement implants featuring cam-and-post designs.[1] DePuy counter-sued, seeking declarations of invalidity and non-infringement.

         After the Court issued its claim construction Order on November 7, 2018, MedIdea stipulated to non-infringement of two of the asserted patents-the '132 patent and the '730 patent. Doc. No. 164.[2] Then, after seeking and obtaining clarification of the Court's claim construction Order (see Doc. No. 164; Doc. No. 174), MedIdea further stipulated to non-infringement of all but claim 9 of the '426 patent. See Doc. No. 191-12. DePuy now moves the Court for summary judgment of non-infringement as to the last remaining asserted claim. Doc. No. 190.

         DePuy's principal argument is that under the Court's claim construction Order, the claimed invention requires that the multiple points of cam action (or “cam action surfaces, ” which the parties agree means the same thing) that contact the posterior side of the tibial post be convex. Doc. No. 191; Doc. No. 201. And because the accused Attune® knee replacement system has no more than one convex cam action surface, the Court should find that, as a matter of law, the Attune® system does not infringe. Id. DePuy further argues that to the extent the Court's claim construction is not clear that the claimed invention requires each of the multiple cam action surfaces to be convex, the Court should address and resolve this threshold claim construction question, which arose only after the Court issued its claim construction Order. Id. Alternatively, DePuy argues that even if the claimed points of cam action are not limited to convex surfaces, the Attune® system still does not infringe because it has only one continuous point of cam action, and any evidence MedIdea may have to the contrary is legally insufficient to meet its burden of proving infringement. Id.

         MedIdea opposes DePuy's motion. Doc. No. 199. MedIdea does not dispute DePuy's contention that if the claimed points of cam action are limited to convex surfaces, the Attune® system does not infringe. See id.; Doc. No. 205. But MedIdea argues that by not limiting its construction of “points of cam action” to convex surfaces, the Court has already determined that the claim term is not so limited and encompasses concave surfaces. Id. MedIdea also contends that DePuy is not entitled to further construction of this claim term because the Court adopted DePuy's proposed construction of that term-which construction was not limited to convex surfaces-and, having failed to ask the Court to so limit the construction, DePuy must now live with the construction it proposed and the Court adopted. Id. On the merits, MedIdea argues that the claimed cam action surfaces are not limited to convex surfaces but may encompass concave surfaces, and that its evidence that the Attune® system has multiple cam action surfaces is more than sufficient to withstand summary judgment. Id.

         The Court held a hearing on DePuy's motion for summary judgment on November 6, 2019. After carefully reviewing all of the parties' submissions in connection with the present motion and hearing their arguments, the Court GRANTS DePuy's motion for the reasons that follow.

         I. BACKGROUND

         A. The '426 patent The '426 patent endeavors “to facilitate a more normal rollback while inhibiting initial translation which could lead to increased wear and sub-optimal . . . mechanics” by incorporating “additional points of cam action” beyond what was provided by then-existing cam-and-post systems. Doc. No. 92-2 ('426 patent) at Abstract. Claim 9 of the '426 patent recites:

9. A distal femoral knee-replacement component configured for use with a tibial component having a bearing surface and superior tibial post with a posterior aspect, the distal femoral component comprising:
a body having a pair of medial and lateral condylar protrusions and an intercondylar region therebetween dimensioned to receive the tibial post; and
a structure providing more than one physically separate and discontinuous points of cam action as the knee moves from extension to flexion.

Id., claim 9 (emphasis added). The only limitation at issue in the present motion is the last one, the relevant portion of which is bolded.

         The'426 patent discloses the following four figures, which also appear in the other three related patents originally asserted in this action:

         (Image Omitted)

         '426 patent, Figures 2A-2D; see also '132 patent (same); '730 patent (same); '280 patent (same).

         Figure 2A shows an embodiment of the claimed components when the knee is "in extension," Figure 2B shows them when the knee is in "90 degrees flexion," and Figure 2C shows them when the knee is in "flexion at 120 degrees or more." '426 patent at 3:29-32, Figs. 2A-2C. Figure 2D depicts a femoral component that features "the alternative use of interconnected cams with physically separate contact points"; the curved structure partially outlined with dotted lines is a "cam mechanism." Id. at 3:46-48; id, Fig. 2D; see also Doc. No. 97 at 4 (Medldea characterizing figure 2D as depicting a "single unitary cam structure with multiple cam action surfaces"). In all four figures, the points marked 101, 201, and 202 (or 101', 201', and 202') are the "physically separate contact points" or "points of cam action" that interact with the posterior surface of the tibial post at different times during the bending of the knee. Id. at 3:32-40.

         Indeed, during prosecution of the related '132 patent, the patentee explained:

In Figures 2A-2C, the members 101, 201 and 202 are physically separate. Figure 2D, also reproduced below, illustrates the alternative use of interconnected cams with physically separate contact points. The only difference between the embodiment depicted in Figures 2A-C and 2D is that the cams are strengthened through the use of bridging material. The cam surfaces that interact with the tibial post are the same, functionality is the same, and all embodiments include a cam extension (202 in Figures 2A-C and 202' in Figure 2D).

Doc. No. 93-12 (Petition to Reverse Withdrawl [sic] of Claims from Consideration) at 3 (emphasis added).

         B. The Claim Construction Proceedings

         During the claim construction proceedings, the parties agreed to construe the claim phrase at issue here-“a structure providing more than one physically separate and discontinuous points of cam action as the knee moves from extension to flexion”-to mean “a structure having at least two points of cam action, each of which engages the posterior surface of the tibial post as the knee moves from extension to flexion, the structure including an area between the points of cam action that does not engage the tibial post.” Doc. No. 192-1 (Joint Claim Construction Chart) at 3. The Court adopted this construction. Doc. No. 158 at 18 n.12. The Court also construed several of the constituent terms in the claim phrase at issue. It construed the term “cam, ” which appears throughout the '426 patent (and the other patents originally asserted) to mean “a structure that makes sliding or rolling contact with the tibial post as the knee bends.” Id. at 7.[3] And it construed “point of cam action, ” which the parties agreed should be construed to have the same meaning as “cam action point” and “cam action surface, ” to mean “the surface of a cam that contacts the tibial post.” Id. at 8, 9. In so doing, the Court expressly “decline[d] to adopt MedIdea's eleventh-hour view” that “a single ‘cam' could have multiple ‘cam action surfaces,' and that a single ‘cam action surface' in turn could have multiple ‘points of cam action.'” Id. at 8, n.4.

         Relevant to the present motion, the Court also construed the claim term “separate cam action surface (or area), ” which appears in several claims of the related '730 patent, to mean “a cam action surface (or area) that is spaced apart from another cam action surface (or area).” Doc. No. 158 at 12. In its analysis of the scope of this claim term, the Court noted that although MedIdea had, in its briefing, proposed construing “separate” to mean “distinct, ” MedIdea had “advanced a different definition of ‘separate' throughout the claim construction hearing, repeatedly describing a ‘cam action surface' as something which ‘occupies a unique location in the geometry of the surface of the cam.'” Id. at 11 n.6. The Court rejected this alternative construction of “separate”-and, with it, of “cam action surface”-for several reasons:

First, the “unique location” phrase appears nowhere in any of the patents-in-suit. Second, the phrase appears in neither of MedIdea's written claim construction submissions, and MedIdea has not clearly proposed it as an alternative or replacement for the construction presented in its briefs. Espousing a new construction of a disputed term for the first time during a claim construction hearing is neither appropriate nor fair. Third, the “unique location” phrase is rife with imprecision and would needlessly require jurors to parse ambiguous and confusing concepts like “the geometry of the surface of the cam, ” all in the context of a simple word (“separate”) with an otherwise plain meaning. Finally, the phrase appears to be a transparent effort by MedIdea to extend the patent language beyond its intended scope by allowing a single, irregularly shaped cam to be arbitrarily subdivided into “separate” cam action surfaces, without meaningfully limiting the potentially infinite “unique locations” one might identify on “the geometry” of any “surface.”

Id.

         Also relevant to the present motion, the Court construed the claim phrase “cam mechanism of the femoral component has a superior convex portion, a concave central portion, and an inferior convex posterior portion, ” which appears in claim 1 of the related '280 patent-to mean “a first convex cam surface and a second, posterior convex cam surface that are separated by a concave portion of the cam mechanism that does not contact the tibial post.” Id. at 15. The Court explained that “[t]his construction is consistent with both parties' proposals insofar as they both require that the two convex portions the term references are surfaces which contact the tibial post.” Id. The Court went on to explain that its claim construction

further incorporates DePuy's proposed language specifying that the “concave central portion” may not contact the tibial post. This is necessarily so, as continuous contact throughout both convex portions and the concave portion would mean that, rather than requiring two distinguishable cam surfaces (as a “cam mechanism” must), the disclosed structure could include one geometrically complex surface making continuous contact with the post (i.e., a single cam). Such an embodiment is explicitly criticized in the specification, Doc. No. 92-5 at 13, and was disavowed by Dr. Masini as outside the scope of his invention, Doc. No. 93-17 at 9. Further, no language or figure in the patent itself discloses an embodiment in which the concave portion of the cam mechanism makes continuous contact with the post. E.g., Doc. No. 92-5 at 1, 9-11 (containing various figures depicting cam mechanisms with concave and convex surfaces, each of which features a “concave portion” that is not contacting the post).

Id. at 15-16 (case citation omitted).

         The Court's discussion of the scope of this claim term makes clear that the limitation at issue could not be met by a concave portion of the cam mechanism making continuous contact with the tibial post, but MedIdea asked the Court to clarify whether the limitation could nevertheless be met by a concave portion of the cam mechanism making some (albeit non-continuous) contact with the post. Following the Court's issuance of its claim construction Order, MedIdea asked:

Can the limitation of “a concave central portion” as claimed in claim 1 of the '280 patent and construed by the Court as a “concave portion of the cam mechanism that does not contact the tibial post” be met if a portion of the concave structure of the cam mechanism contacts the posterior surface of the tibial post, and a portion of the concave structure of the cam mechanism does not make contact?

Doc. No. 164 at 2. The Court responded to MedIdea that “[t]o the extent clarification of the claim construction ruling is required on the issue identified by MedIdea, the Court has construed the relevant term from the '280 patent in the manner proposed by DePuy, answering the question posed by MedIdea in the negative.” Doc. No. 174 ΒΆ 1. In light of this ...


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