Confluent Surgical, Inc. v. HyperBranch Med. Tech., Inc.

• Decision Date: 21 May 2019
• Docket Number: Civil Action No. 17-688-LPS-CJB
• Parties: CONFLUENT SURGICAL, INC., INTEGRA LIFESCIENCES CORPORATION AND INTEGRA LIFESCIENCES SALES LLC, Plaintiffs, v. HYPERBRANCH MEDICAL TECHNOLOGY, INC., Defendant.
• Court: U.S. District Court — District of Delaware

CONFLUENT SURGICAL, INC., INTEGRA LIFESCIENCESCORPORATION AND INTEGRA LIFESCIENCES SALES LLC, Plaintiffs, v. HYPERBRANCH MEDICAL TECHNOLOGY, INC., Defendant.

Civil Action No. 17-688-LPS-CJB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

May 21, 2019

REPORT AND RECOMMENDATION

In this action filed by PlaintiffConfluent Surgical, Inc., Integra Lifesciences Corporation and Integra Lifesciences Sales LLC("Plaintiffs") against DefendantHyperBranch Medical Technology, Inc.("Defendant" or "HyperBranch"), Plaintiffs allege infringement of United States PatentNos. 9,517,478(the "'478 patent"), 8,210,453 (the "'453 patent"), 8,876,021 (the "'021 patent"), 8,033,483 (the "'483 patent"), 8,616,468 (the "'468 patent"), 9,101,946 (the "'946 patent"), and 9,700,290 (the "'290 patent")(collectively, "the asserted patents" or "the patents-in-suit").Presently before the Court is the matter of claim construction.The Court recommends that the District Court adopt the constructions as set forth below.

I.BACKGROUND AND STANDARD OF REVIEW

The Court hereby incorporates by reference the summary of the background of this matter set out in its March 7, 2019 Report and Recommendation ("March 7 R&R").(D.I. 177at 1-2)It additionally incorporates by reference the legal principles regarding claim construction set out in the March 7 R&R.(Id. at 2-4)

II.DISCUSSION

The parties had disputes regarding 15 terms or sets of terms (hereafter, "terms").The March 7 R&R addressed the first two terms.The Court addresses terms 3, 4 and 5 herein.The remaining terms will be addressed in a forthcoming Report and Recommendation(s).

A. "vent lumen"

The claim term "vent lumen" appears in the asserted claims of the '946 and the '468 patents.¹(SeeD.I. 81at 3)The use of the disputed term in claim 1 of the '946 patent and claim 1 of the '468 patent is representative.Claim 1 of the '946 patent is reproduced below, with the disputed term highlighted:

1.A spray assembly for dispensing a mixture, the spray assembly comprising:

a connector portion configured for operable engagement with a first source of component, a second source of component, and a source of pressurized air;

an elongated portion extending distally from the connector portion, the elongated portion including an inner shaft and an outer sleeve, the inner shaft and the outer sleeve defining a vent lumen therebetween, the inner shaft defining a first lumen configured for fluid communication with the first source of component, a second lumen configured for fluid communication with the second source of component, and a third lumen configured for fluid communication with the source of pressurized air;

a tip assembly operably connected to the elongated portion, the tip assembly defining an opening and a mixing chamber between a distal end of the elongated portion and the opening of the tip assembly; and

an insert member received in the mixing chamber, a distal end of the insert member defining an annular recess and at least one radially extending slot, the annular recess and the at least one radially extending slot operating to mix first and secondcomponents prior to a combination of first and second components exiting the opening in the tip assembly.

('946 patent, col. 6:27-51 (emphasis added))Claim 1 of the '468 patent is reproduced next, again with the disputed term highlighted:

1.A spray assembly for dispensing a mixture, the assembly comprising:

a connector configured for operable engagement with a first source of component and a second source of component;

an elongated member operably connected to and extending distally from the connector, the elongated member including an inner shaft and an outer sleeve, and defining a vent lumen between the inner shaft and outer sleeve, the inner shaft defines at least a first lumen configured for fluid communication with the first source of component and a second lumen configured for fluid communication with the second source of component;

a tip operably connected to the connector, the tip including an opening and defining a mixing chamber between a distal end of the elongated member and the opening of the tip; and

an insert member configured to be received in the mixing chamber, the insert member defining at least one radially extending slot on a first end of the insert member and at least one radially extending slot on a second end of the insert member, each of the radially extending slots being configured to mix the first and second components prior to the combination exiting the opening in the tip.

('468 patent, col. 6:25-48 (emphasis added))

The parties' competing proposed constructions for the term are set out in the chart below:

Term

Plaintiffs' Proposed

Construction

Defendant's Proposed

Construction

"vent lumen"

"a passageway for air or fluid

extending along the elongated

portion between the inner

shaft and outer sleeve"

"a passageway or cavity

within a hollow body

designed to release or

discharge excess gas pressure

at a surgical site to the open

atmosphere by providing

fluid communication between

    at least two externalopenings. An 'air lumen' isnot a 'vent lumen.'" 

(See, e.g., D.I. 81at 3)The Court will first explain why Plaintiffs' proposal does not appropriately define "vent lumen," and will then assess HyperBranch's proposal.

1.Plaintiffs' Proposed Construction

As an initial matter, the Court easily concludes that the second portion of Plaintiffs' proposed construction—"extending along the elongated portion between the inner shaft and outer sleeve"—is unnecessary, because it is redundant of other language contained in the claims.That is, other portions of the claims already tell us that the "vent lumen" extends along the elongated portion between the inner shaft and outer sleeve, and there is no need to repeat these details in the construction for "vent lumen" itself.(See, e.g., D.I. 98at 2;Tr.at 32-33;Plaintiffs' Markman Presentation, Slides 10-11)With this language stripped away, we are left with: "a passageway for air or fluid[.]"

HyperBranch argues that if "vent lumen" were construed to mean "a passageway for air or fluid[,]" that would give no meaning to the modifier vent in the term.(D.I. 98at 2-3;see also, e.g., D.I. 101at 3(Plaintiffs suggesting that "any lumen through which air flows" could be a "vent lumen"))That construction, HyperBranch asserts, is one that would apply to any lumen—but here, the term that the patentees chose for their claims, and the term that needs to be construed, is "vent lumen[.]"(Tr.at 33;see alsoD.I. 79at 5)The Court agrees that the construction for "vent lumen" must give meaning to all of the words in that term, including the word "vent"; therefore, the term must mean more than merely "a passageway for air or fluid."Cf.Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950(Fed. Cir.2006)("Allowing a patentee to argue that physical structures and characteristics specifically described in a claim are merelysuperfluous would render the scope of the patent ambiguous, leaving examiners and the public to guess about which claim language the drafter deems necessary to his claimed invention and which language is merely superfluous, nonlimiting elaboration.For that reason, claims are interpreted with an eye toward giving effect to all terms in the claim.").

Plaintiffs respond by arguing that their proposal does not ignore "vent"—instead, they claim that their proposal "recognizes that a 'vent lumen' is simply a passageway that allows air or fluid to flow to equalize pressure."(D.I. 101at 2(emphasis added);see alsoTr.at 73("All that you need for a vent lumen is [a] passageway for . . . where [fluid] will be able to . . . go to equalize.");id.("The vent lumen has to be one which is going to allow fluid or air to go through it, to be able to equalize it.");id. at 74;id. at 76("[A vent] just allows the pressure to dissipate as you go along one side.");id.at 81("[W]hat it means to vent is to allow [the air/fluid] to move from the high pressure down to the lower pressure by the fluid flow[.]")Yet there are at least two problems with Plaintiffs' position.

One problem is that there is nothing in the actual language of Plaintiffs' proposed construction that reflects this notion of "equalizing pressure."(SeeTr.at 97-98)When pressed about this during the Markman hearing, Plaintiffs' counsel argued that it was unnecessary to include language getting to what "vent" means in their proposed construction, because "[i]n the law of physics, that's the way it's going to work . . . .[the air/fluid is] going to flow through, and a person of ordinary skill in the art would know that."(Id. at 77)In light of this, Plaintiffs contend, "[a]ny passageway for air or fluid would amount to [one that equalizes pressure in this way]."(Id.)But this does not seem particularly persuasive.The patents describe different lumens that each constitute passageways for air or fluid.For example, claim 1 of the '946 patent recites, in addition to the "vent lumen[,]""a first lumen configured for fluid communication withthe first source of component, a second lumen configured for fluid communication with the second source of component, and a third lumen configured for fluid communication with the source of pressurized air[.]"('946 patent, col. 6:36-40;see alsoid. at col. 3:35-51 (the specification discussing an embodiment that contains, in addition to the "vent lumen," the "first and second component lumen" as well as an "air lumen")) According to Plaintiffs' explanation, all of these lumens would constitute vent lumens.Yet that does not seem like the correct outcome, in light of the fact that there is a separately claimed lumen called a "vent lumen" that is also part of the invention.(See HyperBranch's Markman Presentation, Slides 222-23)

Second, there is no real support for Plaintiffs' "equalizing pressure" rationale in the record.In support of this argument, Plaintiffs cite to three paragraphs...