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W.H. Wall Family Holdings, LLLP v. Celonova Biosciences, Inc.

United States District Court, W.D. Texas, Austin Division

August 26, 2019

W. H. WALL FAMILY HOLDINGS, LLLP, PLAINTIFF,
v.
CELONOVA BIOSCIENCES, INC., DEFENDANT.

          MEMORANDUM OPINION AND ORDER REGARDING CLAIMS CONSTRUCTION

          LEE YEAKEL UNITED STATES DISTRICT JUDGE

         Before the court in the above-styled and numbered cause are Plaintiff W. H. Wall Family Holdings LLLP's Opening Claim Construction Brief filed December 27, 2018 (Doc. #46); Defendant Celonova Biosciences, Inc.'s Opening Claim Construction Brief filed December 27, 2018 (Doc. #45); Plaintiffs Responsive Claim Construction Brief filed January 11, 2019 (Doc. #47); Defendant's Responsive Claim Construction Brief filed January 12, 2019 (Doc. #49); the parties' Revised Joint Claim Construction Statement filed January 18, 2019 (Doc. #51); and the parties' claim-construction presentations.

         The court held a claim-construction hearing on January 22, 2019. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). After considering the patent and its prosecution history, the parties' claim-construction briefs, the applicable law regarding claim construction, and argument of counsel, the court now renders its order with regard to claim construction.

         I. Introduction

         The court renders this memorandum opinion and order to construe Claim 30 of United States Patent No. 6, 974, 475 ("the '475 Patent") entitled "Angioplasty stent." Plaintiff W. H. Wall Family Holdings LLLP ("Wall") is the owner of the '475 Patent, which relates to a prosthesis in the form of a stent. Specifically, the asserted claim of the '475 Patent is directed to a method of placement of a stent for maintaining a minimum opening through an artery "or the like." Wall alleges that Defendant Celonova Biosciences, Inc. ("Celonova") infringes claim 30 of the '475 Patent through making, using, offering for sale, selling, or importing infringing products.

         II. Legal Principles of Claim Construction

         Determining infringement is a two-step process. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 384 (1996) ("[There are] two elements of a simple patent case, construing the patent and determining whether infringement occurred . . . ."). First, the meaning and scope of the relevant claims must be ascertained. Id. Second, the properly construed claims must be compared to the accused device. Id. Step one, claim construction, is the current issue before the court.

         The court construes patent claims without the aid of a jury. See Markman, 52 F.3d at 979. The "words of a claim 'are generally given their ordinary and customary meaning.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (enbanc) (quoting Vitronics Corp v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). "[T]he ordinary and customary meaning of a claim term 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 . .. ." Id. at 1313. The person of ordinary skill in the art is deemed to have read the claim term in the context of the entire patent. Id. Therefore, to ascertain the meaning of a claim, a court must look to the claim, the specification, and the patent's prosecution history. Id. at 1314-17; Markman, 52 F.3d at 979.

         Claim language guides the court's construction of a claim term. Phillips, 415 F.3d at 1314. "[T]he context in which a term is used in the asserted claim can be highly instructive." Id. Other claims, asserted and unasserted, can provide additional instruction because "terms are normally used consistently throughout the patent. . . ." Id. Differences among claims, such as additional limitations in dependent claims, can provide further guidance. Id. at 1314-15.

         Claims must also be read "in view of the specification, of which they are a part." Markman, 52 F.3d at 979. "[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.'" Phillips, 415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582). In the specification, a patentee may define a term to have a meaning that differs from the meaning that the term would otherwise possess. Id. at 1316. In such a case, the patentee's lexicography governs. Id. The specification may also reveal a patentee's intent to disavow claim scope. Id. Such intention is dispositive of claim construction. Id. Although the specification may indicate that a certain embodiment is preferred, a particular embodiment appearing in the specification will not be read into the claim when the claim language is broader than the embodiment. Electro Med. Sys., S.A. v. Cooper Life Scis., Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994).

         The prosecution history is another tool to supply the proper context for claim construction because it demonstrates how the inventor understood the invention. Phillips, 415 F.3d at 1317. A patentee may also serve as his own lexicographer and define a disputed term in prosecuting a patent. Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004). Similarly, distinguishing the claimed invention over the prior art during prosecution indicates what a claim does not cover. Spectrum Int'l, Inc. v. Sterilite Corp., 164 F.3d 1372, 1378-79 (Fed. Cir. 1988). The doctrine of prosecution disclaimer precludes a patentee from recapturing a specific meaning that was previously disclaimed during prosecution. Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003). A disclaimer of claim scope must be clear and unambiguous. Middleton, Inc. v. 3M Co., 311 F.3d 1384, 1388 (Fed. Cir. 2002).

         Although "less significant than the intrinsic record in determining the legally operative meaning of claim language," the court may rely on extrinsic evidence to "shed useful light on the relevant art." Phillips, 415 F.3d at 1317 (internal quotations omitted). Technical dictionaries and treatises may help the court understand the underlying technology and the manner in which one skilled in the art might use a claim term, but such sources may also provide overly broad definitions or may not be indicative of how a term is used in the patent. See Id. at 1318. Similarly, expert testimony may aid the court in determining the particular meaning of a term in the pertinent field, but "conclusory, unsupported assertions by experts as to the definition of a claim term are not useful to a court." Id. Generally, extrinsic evidence is "less reliable than the patent and its prosecution history in determining how to read claim terms . . . ." Id. Extrinsic evidence may be useful when considered in the context of the intrinsic evidence, id. at 1319, but it cannot "alter a claim construction dictated by a proper analysis of the intrinsic evidence," On-Line Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH, 386 F.3d 1133, 1139 (Fed. Cir. 2004).

         III. Discussion

         A. Disputed Terms

         The parties dispute the construction of five terms. Each disputed term is discussed separately.

         1. "coating"

         The parties' proposed constructions of this term, as used in Claim 30 of the '475 Patent, are listed in the following table:

Wall's Proposed Construction

Celonova's Proposed Construction

"a selectively evaporable covering; a temporary or permanent layer of a substance applied to a surface"

Indefinite

Alternatively, no construction necessary beyond

Alternatively, "material applied to the mesh in order to define openings throughout the mesh"

         Celonova argues that the term "coating" is indefinite, because it is unclear in Claim 30 whether the "coating" itself is "defining a plurality of openings throughout the mesh." Alternatively, Celonova argues that, if the term is not indefinite, the term should be construed to mean that the coating is a material applied to the mesh in order to define openings throughout the mesh. Wall contends that the term "coating" would be understood by a person of ordinary skill in the art and should be given its plain and ordinary meaning, or the term should be construed as "a selectively evaporable covering; a temporary or permanent layer of a substance applied to a surface." The court agrees with Celonova's construction of the term.

         A claim is indefinite if it does not reasonably inform a person of ordinary skill in the art of the claim scope. IPXL Holdings, L.L.C. v. Amazon. com, Inc.,430 F.3d 1377, 1383-84 (Fed. Cir. 2005). "Claim language employing terms of degree has long been found definite where it provided enough certainty to one of skill in the art when read in the context of the invention." Interval Licensing LLC v. AOL, Inc.,766 F.3d 1364, 1370 (Fed. Cir. 2014). Because claim terms are normally used consistently throughout the patent, the usage of a term in one claim can often illuminate the meaning of the same term in other claims. Phillips, 415 F.3d at 1314; see also Rexnord Corp. v. Laitram Corp.,274 F.3d 1336, ...


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