Comos Corp. v. Brainlab, Inc.
| Decision Date | 10 January 2003 |
| Docket Number | No. CIV.A.98-788-JJF.,CIV.A.98-788-JJF. |
| Citation | 239 F.Supp.2d 430 |
| Parties | NOMOS CORPORATION, Plaintiff, v. BRAINLAB, INC. and BrainLAB USA, Inc., Defendants. |
| Court | U.S. District Court — District of Delaware |
Harold Pezzner, Connolly Bove Lodge & Hutz, L.L.P., Wilmington, DE, Jackson Walker, L.L.P., Houston, TX (Clarence E. Eriksen, Bryan P. Galloway, of counsel), for Plaintiff NOMOS Corporation.
Maryellen Noreika, Morris, Nichols, Arsht and Tunnel, Wilmington, DE, Renner, Otto, Boisselle & Sklar, LLP, Cleveland, OJ (Jay R. Campbell, Todd R. Tucker, and John J. Del Col, of counsel) Thomas H. Shunk, Baker & Hostetler, LLP, Cleveland, OH, for Defendants BrainLAB, Inc. and BrainLAB USA, Inc.
Pending before the Court is a Motion For Summary Judgment (D.I.95) filed by Defendants BrainLAB, Inc. and BrainLAB USA, Inc. (collectively "BrainLAB") against Plaintiff NOMOS Corporation ("NOMOS") requesting the Court to renew
Defendants' previously filed motion for summary judgment of noninfringement of United States Patent No. 5,411,026 (the "'026 Patent"). For the reasons discussed, BrainLAB's Motion will be granted.
On March 28, 2002, the Court issued its claim construction for the disputed terms in Claims 1 and 6 of the pending summary judgment motions with leave to renew upon consideration of the Court's claim construction order. BrainLAB subsequently renewed its motion for summary judgment requesting the Court to enter a final judgment of noninfringement in favor of BrainLAB. NOMOS opposes Brain-LAB's Motion, and briefing on the renewed Motion has been completed. Accordingly, this matter is ripe for the Court's review.1
The factual background related to the technology and the '026 Patent is set forth fully in the Court's claim construction decision. (D.I.89, 90). By way of summary, the '026 Patent describes a method and apparatus for verifying the position of a cancerous lesion on a patient's body which is to be treated by a radiation therapy device operating in accordance with a radiation therapy plan. ('026 Patent, col. 1, l. 7-10). Specifically, the '026 Patent discloses a method and apparatus for verifying the position of a lesion in a patient's body by comparing the location of the lesion as depicted in a CT scan with the position of the lesion as depicted in an ultrasound image. ('026 Patent, Abstract). The invention includes the steps of (1) disposing the patient on a treatment table of a radiation therapy device, (2) disposing on the treatment table a means for generating an ultrasound image, (3) generating at least one two-dimensional ultrasound image of the lesion in the patient's body, (4) outlining the outer surface of the lesion in the ultrasound image and (5) comparing the outline of the lesion in the ultrasound image to the outline of the lesion generated by one of the diagnostic images. ('026 Patent, col. 2, l. 45-62).
NOMOS contends that BrainLAB's ExacTrac device infringes its '026 Patent. BrainLAB's ExacTrac device treats a patient using a radiation therapy plan developed by a surgeon after reviewing CT slices of the lesion to be treated and outlining the areas in the CT slice that correspond to the area to be irradiated. The ExacTrac system does not use a constrained fixed ultrasound probe mounted to a treatment table. Rather, the ExacTrac system utilizes a handheld ultrasound probe which can be moved around the patient's body at different angles by the surgeon so as to scan the target area. (Froehlich Decl., ¶10). The position of the ultrasound probe is tracked using an infrared light source, two cameras and three reflective spheres mounted to the ultrasound probe in a triangular arrangement. (Froehlich Deck, ¶11).
Prior to the ExacTrac procedure and after the CT scan of a patient has been completed, the physician creates a radiation treatment plan, in part, by outlining the lesion to be treated in the CT slice. During the ExacTrac procedure, the device mirrors the physician created outlines in the CT slice onto the ultrasound image so that the physician can determine if the lesion has moved since the time the CT scan was taken. (Froehlich Decl., H 15-17). The physician created outlines appear as red circles overlaid onto the ultrasound images. If the lesion has shifted since the initial CT scan, the physician can use the ExacTrac computer and a mouse to move the CT image contour to approximate the location of the lesion on the ultrasound image. The ExacTrac device measures the distance the physician moves the contour and thereby calculates the amount of actual movement of the lesion in the patient's body since the time of the initial CT scan.
In addition to this summary of the '026 Patent and the accused ExacTrac device, the Court will discuss further factual background as needed in the context of this Memorandum Opinion.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure a party is entitled to summary judgment if a court determines from its examination of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In determining whether there is a triable dispute of material fact, a court must review all of the evidence and construe all inferences in the light most favorable to the non-moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976). However, a court should not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). Thus, to properly consider all of the evidence without making credibility determinations or weighing the evidence the "court should give credence to the evidence favoring the [non-movant] as well as that `evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'" Id. The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
To defeat a motion for summary judgment, Rule 56(c) requires the non-moving party to:
do more than simply show that there is some metaphysical doubt as to the material facts.... In the language of the Rule, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." ... Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is "no genuine issue for trial."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Accordingly, a mere scintilla of evidence in support of the non-moving party is insufficient for a court to deny summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, a genuine issue for trial exists only if the record taken as a whole could lead a rational person to conclude that the position of the person with the burden of proof on the disputed issue is correct. Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir.1995) (citations omitted). Thus, if the non-moving party fails to make a sufficient showing on an essential element of his or her case to which he or she has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
A patent is directly infringed when a person "without authority makes, uses or sells any patented invention, within the United States during the term of the patent...." 35 U.S.C. § 271(a). A patent owner may prove infringement under either of two theories: literal infringement or the doctrine of equivalents. Literal infringement occurs where each element of at least one claim of the patent is found in the alleged infringer's product. Panduit Corp. v. Dennison Mfg. Co., 836 F.2d 1329, 1330 n. 1 (Fed.Cir.1987); Robert L. Harmon, Patents and the Federal Circuit 195 & n. 31 (3d ed.1994). For there to be infringement under the doctrine of equivalents, the accused product or process must embody every element of a claim, either literally or by an equivalent. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 41, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Thus, the mere showing that an accused device is equivalent overall to the claimed invention is insufficient to establish infringement under the doctrine of equivalents. In determining whether a patent has been infringed, the patent owner has the burden of proof and must meet its burden by a preponderance of the evidence. SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted).
Infringement is a two step inquiry. Step one requires a court to construe the disputed terms of the patent at issue. Step two requires the court to compare the accused products with the properly construed claims of the patent. Having construed the disputed terms of the '026 Patent, the Court will proceed to a comparison of the accused product with the claims of the patent as construed by the Court to determine whether BrainLAB is entitled to a judgment of noninfringement as a matter of law.
By its Motion, BrainLAB contends that the ExacTrac system does not infringe Claim 1 of the '026 Patent, because the...
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