C.R. Bard, Inc. v. Advanced Cardiovascular Systems, Inc.

• Citation: 15 USPQ2d 1540,911 F.2d 670
• Decision Date: 02 August 1990
• Docket Number: No. 89-1719,89-1719
• Parties: C.R. BARD, INC., Plaintiff-Appellee, v. ADVANCED CARDIOVASCULAR SYSTEMS, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 670

911 F.2d 670

15 U.S.P.Q.2d 1540

C.R. BARD, INC., Plaintiff-Appellee, v. ADVANCED CARDIOVASCULAR SYSTEMS, INC., Defendant-Appellant.

No. 89-1719.

United States Court of Appeals Federal Circuit.

Aug. 2, 1990.

James J. Foster, Wolf, Greenfield & Sacks, P.C., Boston, Mass., for plaintiff-appellee. With him on the brief were Arthur Z. Bookstein and John L. Welch.

Ford F. Farabow, Jr., Finnegan, Henderson, Farabow, Garrett & Dunner, Washington, D.C., for defendant-appellant. With him on the brief was J. Michael Jakes. Also on the brief was Richard A. Bardin, Fulwider, Patton, Lee & Utecht, Los Angeles, Cal., of counsel.

Before NIES, Chief Judge, ^* and MICHEL and PLAGER, Circuit Judges.

PLAGER, Circuit Judge.

This is a case of claimed infringement of a method patent for a medical treatment. Defendant-Appellant Advanced Cardiovascular Systems, Inc. (ACS) was marketing the only perfusion catheter approved by the United States Food and Drug Administration for use in coronary angioplasty. Plaintiff-Appellee C.R. Bard, Inc. (Bard) sued ACS for alleged infringement of U.S. Patent No. 4,581,017 ('017), application for which was filed in 1983 and which issued to Harvinder Sahota in 1986; Bard had purchased all rights to the '017 patent as of December 31, 1986. The '017 patent relates to a method for using a catheter in coronary angioplasty. On July 28, 1989, the United States District Court for the Central District of California (No. SA CV 88-646-JSL) granted plaintiff Bard summary judgment against ACS determining that the '017 patent was not invalid as obvious, and finding infringement of claim 1 of the '017 patent. We reverse the grant of summary judgment and remand the case for further proceedings.

I. Background

A.

In the human circulatory system, the left ventricle of the heart pumps blood into the aorta, the body's largest artery, which then distributes the blood to smaller arteries throughout the body. The first arteries to branch off from the aorta are the left and right main coronary arteries, which provide blood to the heart muscle itself.

Atherosclerosis may cause these arteries to be progressively narrowed (stenosis) by the formation of plaque within the arteries resulting in coronary artery disease. This decreases blood flow to the heart muscle and may cause problems ranging from chest pain (angina) to, in the extreme, a fatal heart attack (myocardial infarction).

Bypass surgery allows the grafting of a vein to the affected coronary artery to bypass the stenosis. Percutaneous transluminal coronary angioplasty (PTCA), an alternative procedure, involves inserting a deflated balloon dilation catheter through the patient's arteries to reach the stenosis in the coronary artery. The balloon is inflated to dilate the stenosis and then deflated and removed to restore blood flow to the heart.

A difficulty associated with PTCA is that a prolonged blockage of blood flow to the heart muscle in the course of the procedure, caused by the inflated balloon, may itself result in angina or a heart attack. Typically during a PTCA, repeated inflations of the balloon, each lasting from 60-90 seconds, are performed.

B.

U.S. Patent No. 4,423,725 ('725), filed in 1982 and issued in 1984, discloses a catheter having a multiple surgical cuff with an inflatable cuff member, and having a central lumen or channel containing side window openings in fluid communication with the central lumen. The side openings allow blood to circulate through the central lumen even while the inflatable cuff is inflated, thus avoiding blockage of fluid flow when the cuff member is inflated. The '725 patent discloses that, in an angioplasty,

the side openings ... should be located at the level of the aorta to create the highest blood pressure and to prevent the side openings ... from being closed laterally by an adherent small artery wall.

In 1983, inventor Sahota filed a patent application (ultimately issuing as the '017 patent, the patent at issue in this case) having (1) device claims for a catheter to administer an angioplasty treatment and (2) method claims for the manner in which a surgeon would use the catheter in administration of an angioplasty treatment. All claims were rejected by the patent examiner. In particular, claim 4 of the application (which, following significant amendment, became claim 1 of the '017 patent) was rejected, inter alia, in view of the prior art '725 patent.

Following this rejection, the inventor modified certain claims. These modified claims were also rejected. Following this rejection, the inventor removed all claims to a catheter, and claimed only a method of administering an angioplasty.

In twice amending claim 4 of the application, the inventor argued to the examiner that "the proximal orifices which admit blood to the main lumen in the blood catheter [are] 'immediately adjacent said balloon' " [emphasis supplied]. ¹ Claim 4 of the application was ultimately allowed as claim 1 of the '017 patent, and contained the "immediately adjacent" language.

C.

The ACS catheter, sold under the name ACS Stack Perfusion Catheter, is a balloon-type catheter having side openings in the main lumen located near the proximal end of the balloon. The ACS catheter's main lumen is simply open past the distal end of the balloon enabling blood to flow through the catheter while the balloon is inflated. Plaintiff Bard alleges that the ACS catheter is especially adapted for use by a surgeon in the course of administering a coronary angioplasty in a manner that infringes claim 1 of the '017 patent, that therefore ACS is a contributory infringer, and that ACS actively induces infringement.

ACS denied both charges and challenged the validity of the Bard patent. The district judge agreed with Bard and granted Bard's request for summary judgment, finding ACS to have "actively induced or contributed to [the] infringement" of claim 1 of the '017 patent, and to have failed to prove the invalidity of the '017 patent. C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc., No. SA CV 88-646-JSL, slip op. at 14 (C.D. Cal. July 28, 1989).

II. Discussion

A.

The law governing summary judgment is well established. Summary judgment is as appropriate in a patent case as it is in any other case. Avia Group Int'l, Inc. v. L.A. Gear Cal., Inc., 853 F.2d 1557, 1561, 7 USPQ2d 1548, 1551 (Fed.Cir.1988); Spectra Corp. v. Lutz, 839 F.2d 1579, 1581 n. 6, 5 USPQ2d 1867, 1869 n. 6 (Fed.Cir.1988). A motion for summary judgment is properly granted where

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c).

The party moving for summary judgment carries the burden of demonstrating the absence of any genuine issue of material fact, and that the party so moving is entitled to judgment as a matter of law. Cooper v. Ford Motor Co., 748 F.2d 677, 679, 223 USPQ 1286, 1287-88 (Fed.Cir.1984). In ruling on a motion for summary judgment, the district court is required to view the evidence presented in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of the nonmoving party. However, the nonmoving party must do more than simply present some evidence as to an issue it asserts is in dispute. Rather, the standard is that sufficient evidence must be forthcoming such as to allow a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Avia Group Int'l, Inc. v. L.A. Gear Cal., Inc., 853 F.2d at 1561, 7 USPQ2d at 1550. In reviewing the grant by the trial court of a summary judgment motion, this court is not bound by the court's holding that no material facts are in dispute; we are required to determine for ourselves whether the standards for summary judgment have been met. A.B. Chance Co. v. RTE Corp., 854 F.2d 1307, 1310-11, 7 USPQ2d 1881, 1884 (Fed.Cir.1988).

B.

Bard alleges that under 35 U.S.C. Sec. 271(b), (c) (1988), ACS has both (1) induced infringement of method claim 1 in the '017 patent and (2) contributorily infringed. Of course, a finding of induced or contributory infringement must be predicated on a direct infringement of claim 1 by the users of the ACS catheter. See Met-Coil Sys. Corp. v. Korners Unltd., Inc., 803 F.2d 684, 687, 231 USPQ 474, 477 (Fed.Cir.1986); Standard Oil Co. v. Nippon Shokubai Kagaku Kogyo Co. Ltd., 754 F.2d 345, 348-49, 224 USPQ 863, 865-66 (Fed.Cir.1985); Aro Mfg. Co. v. Convertible Top Co., 365 U.S. 336, 341, 81 S.Ct. 599, 602, 5 L.Ed.2d 592 (1961).

1.

Bard argues that by selling its catheter for use by surgeons in angioplasty procedures, ACS is a contributory infringer of Bard's method claim 1 in the '017 patent. Section 271 of Title 35, United States Code, deals with infringement of patents; subsection (c) specifies what is necessary to be a contributory infringer. For purposes of this case, the statute requires that ACS sell a catheter for use in practicing the '017 process, which use constitutes a material part of the invention, knowing that the catheter is especially made or adapted for use in infringing the patent, and that the catheter is not a staple article or commodity of commerce suitable for substantial noninfringing use.

In asserting ACS's contributory infringement of claim 1, Bard seeks to establish the requisite direct infringement by arguing that there is no evidence that any angioplasty procedures using the ACS catheter would be noninfringing. Testing this assertion requires a two step analysis. First is a determination of the scope of the claim at issue. Second is an examination of the evidence before the court to ascertain whether, under Sec. 271(c), use of the ACS catheter would infringe the claim as interpreted. See ZMI Corp. v. Cardiac...