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Viveve, Inc. v. Thermigen, LLC

United States District Court, E.D. Texas, Marshall Division

April 20, 2017

VIVEVE, INC., Plaintiff,
v.
THERMIGEN, LLC; THERMIAESTHETICS, LLC; AND RED ALINSOD, M.D., Defendants.

          MEMORANDUM OPINION AND ORDER

          RODNEY GILSTRAP, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants Thermigen, LLC; ThermiAesthetics, LLC; and Dr. Red Alinsod, M.D.'s (collectively “Defendants”) Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) and 35 U.S.C. § 101. (Dkt. No. 15.) On February 22, 2017, the Court held a hearing at which the parties presented oral argument on said motion. After considering the briefing and argument of the parties, and for the reasons set forth below, the Court finds that Defendants' motion should be and is DENIED.

         I. BACKGROUND

         On October 21, 2016, Plaintiff Viveve, Inc. (“Plaintiff” or “Viveve”) filed its original complaint for infringement of U.S. Patent No. 8, 961, 511 (the “'511 patent”) against Defendants. (See Dkt. No. 1.) The '511 patent is titled “Vaginal Remodeling Device and Methods, ” and claims a method for remodeling female genital tissue by applying heat to certain target tissue. (Id. at 4.) As the abstract of the '511 patent states, “[t]he effect of the applied heat is to remodel genital tissue by tightening it.” ('511 patent, Abstract.) “The tightening may be a consequence of thermal denaturation of collagen as well as a longer term healing response in the tissue that includes an increased deposition of collagen.” (Id.) The method covered by the '511 patent provides an alternative to the prior art, which indicated that invasive surgical procedures were required to bring about the desired remodeling. (See Id. at col. 2:1-21.)

         Plaintiff alleges that Defendants infringe “one or more claims of the '511 Patent, including, but not limited to, Claim 51 . . . .” (Id. at 7.) Claim 51 is a method claim, which recites:

A method for remodeling a therapeutic zone within a target tissue, the target tissue comprising tissue underlying an epithelium of female genital tissue comprising at least one of vulva, introitus and vagina tissue, the method comprising:
heating the target tissue, and remodeling the therapeutic zone of target tissue, wherein the heating includes heating a mucosal surface of the labia minora.

('511 patent, at col. 18: 21-28.)[1] Thus, the method covered by claim 51 essentially covers two discrete steps: (1) “heating the target tissue, ” and (2) “remodeling the therapeutic zone of target tissue.” (Id.)

         On December 19, 2016, Defendants filed their motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and 35 U.S.C. § 101, arguing that the '511 patent is invalid as directed to non-patentable subject matter. (Dkt. No. 15 at 1.) Specifically, Defendants assert that the '511 patent is directed to the natural phenomenon that collagen is remodeled through exposure to heat (a phenomenon that allegedly has previous, well known applications in treating tissue generally) and that it simply applies this phenomenon to a discrete area of the human body (i.e., female genital tissue). (Dkt. No. 15 at 1.)

         II. LEGAL STANDARD

         A. 35 U.S.C. § 101

         Section 101 of the Patent Act defines the scope of patent eligible subject matter:

Whoever invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

35 U.S.C. § 101. The Supreme Court has held that there are three specific exceptions to patent eligibility under § 101: laws of nature, natural phenomena, and abstract ideas. Bilski v. Kappos, 561 U.S. 593, 601 (2010). “The concern underlying these judicial exclusions is that patent law not inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity.” Rapid Litigation ...


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