Elekia Instrument v. O.U.R. Scientific

• Decision Date: 01 June 2000
• Citation: 54 USPQ2d 1910,214 F.3d 1302
• Parties: (Fed. Cir. 2000) ELEKTA INSTRUMENT S.A., Plaintiff-Appellee, v. O.U.R. SCIENTIFIC INTERNATIONAL, INC., Defendant-Appellant. 99-1556 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1302

214 F.3d 1302 (Fed. Cir. 2000)

ELEKTA INSTRUMENT S.A., Plaintiff-Appellee, v. O.U.R. SCIENTIFIC INTERNATIONAL, INC., Defendant-Appellant.

99-1556

United States Court of Appeals for the Federal Circuit

DECIDED: June 1, 2000

Appealed from: United States District Court for the Southern District of New York Judge Lawrence M. McKenna

[Copyrighted Material Omitted]

Theresa M. Gillis, Jones, Day, Reavis & Pogue, of New York, New York, argued for plaintiff-appellee.

Todd E. Thompson, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, of San Francisco, California, argued for defendant-appellant. With him on the brief were Amy E. Margolin, of San Francisco, California; and Anthony De Alcuaz, of Palo Alto, California

Before LOURIE, RADER, and BRYSON, Circuit Judges.

LOURIE, Circuit Judge.

O.U.R. Scientific International, Inc. ("OSI") appeals from the decision of the United States District Court for the Southern District of New York denying its motion for summary judgment of noninfringement of U.S. Patent 4,780,898, and granting the cross-motion of Elekta Instrument S.A. ("Elekta") for summary judgment of infringement. See Elekta Instrument S.A. v. O.U.R. Scientific Int'l, Inc., 51 F. Supp. 2d 478 (S.D.N.Y. 1999). Because the district court erred in concluding as a matter of law that OSI's Rotating Gamma System (RGS) literally infringes claim 1 of the '898 patent, we reverse.

BACKGROUND

Elekta's '898 patent is directed to medical devices known as "gamma units." Gamma units are used for treating brain tumors through focused radiation therapy. See Elekta, 51 F. Supp. 2d at 479. In a typical gamma unit, multiple beams of radiation are aimed at a single focal point on a patient's brain. See id. At the focal point, the combined energy of the multiple radiation beams destroys abnormal brain tissue. See id. Gamma units generally consist of several components, including: (1) "radiation sources" (i.e., radioactive cobalt isotopes) located around the outer surface of a hemispherical radiation shield; (2) "beam channels," or narrow holes in the radiation shield, located beneath each radiation source; (3) a "collimator" located inside the radiation shield, with holes that are aligned with the beam channels; and (4) a treatment table for moving a patient in and out of the gamma unit. See id. at 479-80.

The '898 patent claims a specific arrangement of radiation sources and beam channels that reduces the risk of radiation scatter outside the gamma unit. See '898 patent, col. 1, ll. 38-43; col. 3, ll. 8-9. The patent contains one independent claim and five dependent claims. Independent claim 1 is the sole claim at issue. During prosecution, the examiner initially rejected claim 1 for obviousness. In response, the applicant amended claim 1 to read as follows:

1. An arrangement in a gamma unit, comprising a plurality of radiation sources mounted within a radiation shield and having beam channels directed radially from said radiation sources toward a common focal point, said radiation shield comprising a space for accommodating the head of a patient lying on a support, and having an opening, the radiation sources and the beam channels directed radially from said space toward the focal point being located, in relation to the diametrical plane extending across the opening to said space, only within a zone extending between latitudes 30-45, as seen from said diametrical plane.

Id. at col. 3, ll. 16-27 (emphasis added). The patent was accordingly granted. Figure 4 of the '898 patent depicts the arrangement as follows [Tabular or Graphical Material Omitted]

According to the written description, the novel aspect of this arrangement is that the radiation sources 8 and the beam channels 6 and 19 are located, in relation to the diametrical plane across the opening 11 to the radiation shield 2, "within a zone extending to latitudes 30-45, from said diametrical plane." Id. at col. 1, ll. 44-50. In other words, the radiation sources 8 and beam channels 6 and 19 are located "within an annular curved zone extending maximally up to latitudes 30-45," as seen from the diametrical or vertical plane. See id. at col. 2, ll. 16-22; col. 3, ll. 2-3 (emphasis added). As a result, none of the radiation sources 8 and beam channels 6 and 19 are directed out of the gamma unit, and any radiation beams that pass through the focal point F will impinge solely upon the radiation shield 2. See id. at col. 3, ll. 3-7.

OSI offers for sale in the United States its RGS gamma unit, which has radiation sources and beam channels positioned at latitudes ranging from 14 to 43 in relation to the diametrical plane. See Elekta, 51 F. Supp. 2d at 481. Elekta sued OSI for infringement of claim 1 of the patent. See id. at 479. OSI moved for summary judgment of noninfringement of the patent, and Elekta cross-moved for summary judgment of infringement. See id. The district court denied OSI's motion and granted Elekta's cross-motion, after interpreting claim 1 as including gamma units with radiation sources and beam channels located "beginning at the edge of the helmet (0) and extending to a point between 30-45," and concluding that OSI's device literally infringes claim 1 of the '898 patent. Id. at 485. OSI now appeals to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994).

DISCUSSION

A. Standards of Review

We review a district court's grant of summary judgment de novo. See Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315, 47 USPQ2d 1272, 1275 (Fed. Cir. 1998). In reviewing a denial of a motion for summary judgment, we give considerable deference to the trial court, and "will not disturb the trial court's denial of summary judgment unless we find that the court has indeed abused its discretion." SunTiger, Inc. v. BluBlocker Corp., 189 F.3d 1327, 1333, 51 USPQ2d 1811, 1815 (Fed. Cir. 1999). Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). "In determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the opponent." Chuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1307, 46 USPQ2d 1752, 1755 (Fed. Cir. 1998).

When both parties move for summary judgment, the court must evaluate each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. See McKay v. United States, 199 F.3d 1376, 1380 (Fed. Cir. 1999). If there are no material facts in dispute precluding summary judgment, "our task is to determine whether the judgment granted is correct as a matter of law." Marathon Oil Co. v. United States, 177 F.3d 1331, 1337 (Fed. Cir. 1999).

A determination of infringement requires a two-step analysis. See Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1476, 45 USPQ2d 1498, 1500 (Fed. Cir. 1998). "First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process." Id. (quoting Carroll Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed. Cir. 1993)). "In order for a court to find infringement, the plaintiff must show the presence of every element or its substantial equivalent in the accused device." Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1199, 32 USPQ2d 1338, 1341 (Fed. Cir. 1994).

Claim construction is an issue of law, see Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71, 34 USPQ2d 1321, 1322 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996), that we review de novo. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1172 (Fed. Cir. 1998) (en banc). Determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed. Cir. 1998).

B. Infringement

OSI argues that the district court erred in interpreting claim 1 of the '898 patent to cover gamma units with radiation sources and beam channels located between 0 and 30. OSI asserts that the claim language "only within a zone extending between latitudes 30-45" unambiguously excludes gamma units with radiation sources between 0 and 30. OSI contends that, even though the preferred embodiment discloses radiation sources between 0 to 45, claim 1 should be limited to gamma units with radiation sources located exclusively between 30 to 45 because the scope of Elekta's right to exclude is governed by the language of the claims not by the written description. OSI thus asserts that the district court erred in concluding as a matter of law that its RGS device literally infringes claim 1. Moreover, OSI argues that Elekta is barred by prosecution history estoppel from arguing infringement under the doctrine of equivalents, because coverage of gamma units with radiation sources in the range of 0 to 30 was surrendered in response to an obviousness rejection.

Elekta responds that the district court properly construed claim 1 as covering gamma units with radiation sources that are in a zone having an upper boundary between 30 to 45. Elekta argues that the plain meaning of the term "extending" is "reaching," which includes 0 to 30, and that the district court's claim construction is the only interpretation that is consistent with the claim language, the written description, and the prosecution history. Elekta contends that OSI's proposed interpretation is inconsistent with the drawings and the written description, and should not be adopted because it fails to cover the preferred embodiment and would render the claim invalid. Elekta further contends that the district court properly concluded as a matter of law that OSI's RGS device...