Diomed, Inc. v. Angiodynamics, Inc.
Decision Date | 30 August 2006 |
Docket Number | No. 04-10444-NMG.,No. CIV.A. 04-10019-NMG.,CIV.A. 04-10019-NMG.,04-10444-NMG. |
Citation | 450 F.Supp.2d 130 |
Parties | DIOMED, INC., Plaintiff, v. ANGIODYNAMICS, INC., Defendant. Diomed, Inc., Plaintiff, v. Vascular Solutions, Inc., Defendant. |
Court | U.S. District Court — District of Massachusetts |
Michael A. Albert, Wolf, Greenfield & Sacks, PC, Boston, for Diomed, Incorporated, Plaintiff.
William H. Bright, Jr., McCarter & English, LLP, Hartford, CT, for AngioDynamics, Incorporated, Defendant.
Rodney S. Dowell, Berman & Dowell, Boston, for AngioDynamics, Incorporated, Defendant.
Steven L. Feldman, Ruberto, Israel & Weiner, P.C., Boston, for Vascular Solutions, Inc., AngioDynamics, Incorporated, Defendants.
James J. Foster, Wolf, Greenfield & Sacks, PC, Boston, for Diomed, Incorporated, Plaintiff.
Mark D. Giarratana, McCarter & English, LLP, Hartford, CT, for AngioDynamics, Incorporated, Defendant.
Jason M. Honeyman, Wolf, Greenfield & Sacks, PC, Boston, for Diomed, Incorporated, Plaintiff.
Michael N. Rader, Wolf, Greenfield & Sacks, PC, Boston, for Diomed, Incorporated, Plaintiff.
Heather D. Redmond, Dorsey & Whitney LLP, Minneapolis, MN, for Vascular Solutions, Inc., Defendant.
Alexandra Stevens, McCarter & English, LLP, Stamford, CT, for AngioDynamics, Incorporated, Defendant.
John L. Strand, Wolf, Greenfield & Sacks, PC, Boston, for Diomed, Incorporated, Plaintiff.
Merton E. Thompson, Burns & Levinson LLP, Boston, for Total Vein Solutions, LLC, Defendant.
Todd R. Trumpold, Dorsey & Whitney LLP, Minneapolis, MN, for Vascular Solutions, Inc., Defendant.
Karen L. Van Kooy, Ruberto, Israel & Weiner, P.C., Boston, for Vascular Solutions, Inc., Defendant.
J. Thomas Vitt, Dorsey & Whitney LLP, Minneapolis, MN, for Vascular Solutions, Inc., Defendant.
Seth M. Wilson, McCarter & English, LLP, Hartford, CT, for AngioDynamics, Incorporated, Defendant.
William A. Zucker, McCarter & English, LLP, Boston, for New Star Lasers, Inc., Defendant.
Pending before the Court in these consolidated patent cases are a motion to exclude expert testimony and several cross-motions for summary judgment.
The plaintiff, Diomed, Inc. ("Diomed"), develops laser technology that is designed to treat varicose veins in a minimally invasive manner. It sells a product under the mark EVLT® which apparently relates to U.S. Patent No. 6,398,777 ("the '777 patent"), owned by Diomed.
In January, 2004, Diomed filed a complaint alleging that AngioDynamics, Inc. ("AngioDynamics") infringed the '777 patent. The case was assigned at that time to the session of United States District Judge Richard G. Stearns. AngioDynamics is a market competitor of Diomed. It is alleged to have infringed the '777 patent (and/or to have induced or contributed to infringement by others) through its manufacture, use, marketing and sales of its socalled EVLS Procedure Kit, a system for laser treatment of varicose veins.
In its answer to plaintiff's complaint, AngioDynamics denies the allegations of infringement and asserts that the '777 patent is invalid both on its face and as applied to the actions of AngioDynamics. It filed counterclaims seeking declaratory judgments against Diomed and a third party, Endolaser Associates, LLC ("Endolaser"), that the '777 patent has not been infringed and is invalid. According to the counterclaim, Endolaser jointly owns the '777 patent with Diomed. AngioDynamics later amended its affirmative defenses and counterclaims to allege patent misuse, violation of federal antitrust law and violation of Mass. Gen. Laws ch. 93A ("Chapter 93A").
In March, 2004, Diomed filed a separate complaint against Vascular Solutions, Inc. ("VSI") alleging that it had also infringed the '777 patent through its use and marketing of a product designed to treat varicose veins. VSI sells a laser and associated treatment kit under the name "Varilase". In its answer, VSI denies infringement, asserts that the '777 patent is invalid and counterclaims for declarations of invalidity and non-infringement. VSI has amended its answer twice to assert that Diomed's action is barred by inequitable conduct and to seek a declaration that the '777 patent is unenforceable.
In May, 2004, Endolaser filed a motion to dismiss the counterclaims against it on the ground that it has transferred all of its rights in the '777 patent to Diomed. After considering written and oral arguments on behalf of Endolaser and AngioDynamics, Judge Stearns allowed Endolaser's motion to dismiss in an order entered on November 12, 2004.
In February, 2005, the Diomed cases against AngioDynamics and VSI were consolidated.1 Judge Stearns bifurcated AngioDynamics' counterclaims against Diomed for violations of antitrust law and Chapter 93A and ordered that discovery with respect to those claims would be stayed until the patent infringement and validity claims had been decided. All parties have demanded that their claims be tried to a jury.
A Markman hearing for the purpose of claim construction was held in March 2005, and Judge Stearns entered a memorandum and order ("M & 0") construing the claims soon thereafter. See Diomed, Inc. v. Angiodynamics, Inc., No. Civ.A. 04-CV-10019-RGS, 2005 WL 834875 (D.Mass. April 12, 2005). Diomed has alleged that both defendants infringe independent Claims 9 and 21, and dependent Claims 10-14 and 16-19, of the '777 patent. Id. at *1.
Judge Stearns concluded that the '777 patent comprises a "method" of treating blood vessels through the use of laser energy and that Claim 9 thereof addresses the means of inserting, positioning and emitting laser energy into a blood vessel. Id. at *1-2.
Construing the insertion and placement steps of Claim 9, Judge Stearns found that the fiber optic line used to emit laser energy required an uncoated tip and that positioning the laser necessarily required
deliberately putting the uncoated tip of the fiber optic line in physical contact with the wall of the blood vessel, which requires the drainage of blood and compression of the vein.
Id. at *5-6. Construing the third step whereby laser energy is emitted, the court declared that the fiber optic tip was to be maintained in physical contact with the interior surface of the blood vessel wall while laser energy was emitted in order to decrease the diameter of the blood vessel. Id. at *7.
The parties also sought construction of the term "emptying" as it was used in dependent Claim 10: "[t]he method of claim 9, further comprising emptying the blood vessel prior to emitting said laser energy". Judge Stearns interpreted "emptying" to mean "the process of emptying most, but not necessarily all of the blood from the blood vessel". Id. at *8. Although the parties sought construction of additional terms, Judge Stearns concluded that the remaining disputes did not require resolution by the court because the terms were not ambiguous or material. Id. at *1 n. 2.
Discovery in the consolidated cases continued during 2005 and the parties filed motions for summary judgment. Oppositions and replies to those motions were filed in January and February, 2006, and oral argument was scheduled for June 1, 2006. In May, however, Judge Stearns discovered that he was being treated by a physician who had been asked to serve as an expert witness of Diomed. After seeking and considering the parties' positions concerning recusal or disqualification, Judge Stearns entered an order recusing himself from the case on June 26, 2006. Shortly thereafter, the matter was assigned to this session.
Now pending for consideration by this Court are 1) a joint motion of defendants AngioDynamics and VSI to exclude expert evidence upon which plaintiff is expected to rely, 2) Diomed's motion for summary judgment with respect to patent validity and enforceability, 3) Diomed's motion for summary judgment on the issue of patent infringement, 4) VSI's motion for summary judgment on infringement and 5) AngioDynamics' motion for summary judgment on infringement. After first considering the evidentiary motion, the Court will address the cross-motions for summary judgment by order of topic, beginning with the issues of patent validity and enforceability and concluding with the issue of infringement.
Defendants VSI and AngioDynamics move this Court to bar Diomed from presenting any evidence, testimony, analyses or opinions of two purported experts, Philip Green ("Mr. Green") and Dr. Luis Navarro ("Dr. Navarro"), on the grounds that certain expert opinions of those witnesses were not timely disclosed. Mr. Green is expected to provide expert testimony relating to damages whereas Dr. Navarro, one of the inventors of the '777 patent, is expected to testify both as a fact witness and as an expert witness.
Rule 26(a)(2) of the Federal Rules of Civil Procedure obligates parties to disclose the identities of potential expert witnesses in accordance with any court-imposed scheduling order. Moreover, where those witnesses are either employees whose duties include the regular provision of expert testimony or non-employees who are "retained or specially employed to provide expert testimony", the party using such a witness is to provide a written report containing, inter alia, "a complete statement of all opinions to be expressed and the basis and reasons therefor".
In this case, the parties were directed to provide all expert reports by June 22, 2005, and to serve or notice all discovery requests by October 15, 2005. Mr. Green was timely identified as an expert witness on the issue of damages and his expert report was produced on June 22, 2005. That report was supplemented, however, in December, 2005, and defendants now seek to exclude the opinions presented therein. Dr. Navarro was identified as a potential expert witness but no expert report was produced with respect to his expected testimony. Defendants now...
To continue reading
Request your trial-
Milwaukee Elec. Tool Corp. v. Snap-On Inc.
...packs. First, videos do not have a printed component and therefore do not qualify under Section 311(b). See Diomed v. Angio Dynamics, Inc. , 450 F.Supp.2d 130, 142 (D. Mass 2006) ("The definition of 'printed' cannot be stretched to include a presentation which does not include a paper compo......
-
Doe v. Pike
...to facilitate a fair contest with the basic issues and facts disclosed to the fullest practical extent." Diomed, Inc. v. AngioDynamics, Inc. , 450 F.Supp. 2d 130, 136–37 (D.Mass. 2006) (quoting Poulis-Minott v. Smith , 388 F.3d 354, 358 (1st Cir. 2004) ) (internal quotation marks omitted). ......
-
Zipwall, LLC v. Fastcap, LLC
...disclose such functions"). 53. Al Site Corp. v. VSI Int'l Inc., 174 F.3d 1308, 1323 (Fed.Cir.1999). 54. Diomed, Inc. v. AngioDynamics, Inc., 450 F.Supp.2d 130, 138 (D.Mass.2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (citations omi......
-
Static Control Components v. Lexmark Intern., 5:02-571.
...to contain direct evidence that every physician performed the `correlating' [directly infringing] step."); Diomal, Inc. v. AngioDynamics, Inc., 450 F.Supp.2d 130, 151 (D.Mass.2006) ("Plaintiffs failure to connect its monetary damages to particular acts of infringement does not negate a dama......