Kcj Corp. v. Kinetic Concepts, Inc., Civil Action No. 98-2047-KHV.
| Decision Date | 22 December 1998 |
| Docket Number | Civil Action No. 98-2047-KHV. |
| Citation | 30 F.Supp.2d 1319 |
| Parties | KCJ CORPORATION, Plaintiff, v. KINETIC CONCEPTS, INC., et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Terry W. Schackman, Therese M. Schuele, Michael F. Saunders, Teresa A. Woody, Spencer, Fane, Britt & Browne, Kansas City, MO, Stacy Y. Daniels, Spencer, Fane, Britt & Browne, Overland Park, KS, for Plaintiff.
Lawrence A. Rouse, Marcus N. Bozeman, vivian W. McLeod, Rouse, Hendricks, German, May & Shank, Kansas City, MO, for Defendants.
KCJ Corporation has filed suit against Kinetic Concepts, Inc. and KCI Therapeutic Services, Inc., asserting that they willfully infringed plaintiff's U.S. Patent No. 4,631,767 [the '767 patent] by manufacturing and selling therapeutic low air loss mattress devices. This matter comes before the Court on motions pursuant to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), in which the parties ask the court to construe claim 1 of the '767 patent as a matter of law. See Plaintiff KCJ's Motion For Summary Judgment As To Claim Interpretation (Doc. # 227) and Defendants' Motion For Partial Claim Construction And For Summary Judgment Based On That Construction (Doc. # 231), both filed October 21, 1998.1 Consistent with the evidence presented at a Markman hearing on December 17, 1998, the Court finds as a matter of law that claim 1 of the '767 patent has the meaning and scope set forth below.
The construction of a patent is a question of law for the Court. Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996).
On November 21, 1984, Myra Carr, Francis Brosig, and Robert Gottlieb applied to the United States Patent and Trademark Office (the "PTO") for a patent for a so-called Air Flotation Mattress "for use in the treatment of patients in hospitals, nursing homes and home care." Plaintiff's Ex. 2, Tab A, p. 1. On January 3, 1985, the applicants assigned their rights in the patent application to KCJ Corporation.2 Plaintiff's Ex. 2, Tab B.
The patent examiner rejected plaintiff's original application for obviousness based on prior art stating as follows:
Claims 1-4 and 7-10 are rejected under 35 U.S.C. § 103 as being unpatentable over Schild et al in view of Gammons et al.
Schild et al shows an air mattress which consists of a pressure pad 28 enclosed within a removable surrounding cover 27. (See Fig. 4). The cover 27 forms a plenum with a ventilating support surface 25, air is pumped into the plenum and exists (sic) through passages 29. Note that Schild et al disclose that the pressure pad 28 could be replaced with a conventional air mattress, also note the embodiment of Fig. 3. Gammons et al teach that a pressure pad can also be used to provide body ventilation by providing passages 24 and 25 upon the pad surface. It would have been obvious to one of ordinary skill in the art to provide Schild's pressure pad with ventilating passages as taught by Gammons, also many differing materials could be used in the construction of Schild, any particular material would have been an obvious matter of choice.
Claims 5 and 6 are rejected under 35 U.S.C. as being unpatentable over Schild in view of Gammons as applied to claim 2 above, and further in view of Harris et al.
Harris et al teach that an air mattress can have parallel baffles with end manifolds, it would have been obvious to one of ordinary skill in the art to construct Schild's pressure pad in this fashion.
Nos, Lapidus, Crane, and Stanton show relevant art.
Plaintiff's Ex. 2, Tab C, p. 2-3.
The Gammons Patent, U.S. Patent No. 4,347,633 was issued on September 7, 1982. The Schild Patent, U.S. Patent No. 4,391,009 was issued on July 5, 1983. The Court has reviewed each of these patents, and provides only a brief summary of each here.
The Gammons patent disclosed an interdigitated mattress chamber with two air cells that interrupted each other along the length of the mattress and were alternately inflated and deflated to provide support for the patient's body. Gammon patent, Col. 4, 1.52-55; Fig. 4 & 6. The Gammons mattress had "vent holes in its top for ventilating the patient with inflation gas," see Gammons abstract, and the patent revealed a mattress with three rows of ventilating passages equidistant from one another. Gammons patent, Fig. 4. The patent observed that certain mattresses in the prior art had a tendency to "crawl" on the bed surface because the sequential inflation and deflation of parts of the mattress "act[ed] somewhat like raising and lowering alternating feet of a multi-legged caterpillar or worm." Gammons patent, Col. 1, 1.27-31. The Gammons patent also noted that different kinds of pads did not have the "crawl" problem because they did not alternately inflate air passages; instead, such pads were continuously inflated with a circulating liquid and adjoining sections did not sequentially inflate and deflate. Id., Col. 1, 1.52-58.
The Schild patent claimed a plenum chamber with a plurality of apertures. It also claimed "alternating inflatable support ... having a first set of bubble like cells which are interdigitated with a second set of aligned bubble like cells for giving sole support to ... [a] living body." Schild patent, Col. 6, 1.21-25. The Schild patent claimed a pump "coupled to said alternating inflatable support means for alternately inflating at a relatively high pressure said first and second interdigitated sets of aligned bubble like cells." Id., Col. 6, 1.27-30. As noted by the patent examiner, the Schild patent disclosed that the alternating inflatable support (pressure pad) could be replaced with a conventional air mattress.
After the patent examiner rejected plaintiff's original application for obviousness based on prior art, plaintiff amended its application, asserting that the amended claim distinguished the prior art cited by the patent examiner:
The structure defined in Claim 1 as amended is nowhere suggested or intimated in any of the prior art of record. The primary reference to Schild et al., Patent No. 4,391,009, describes with reference to Fig. 4 a body support including a central pad 28 and a surrounding envelope defined by sheets 25 and 26. The pad 28 may be an alternative pressure pad, or a conventional mattress. In neither event, however, does the Schild et al. reference suggest the structure now claimed. Thus, if use is made of an alternating pressure pad ... it is clear that the structure defined in Claim 1 is not met. Thus, the alternating pressure pad of the Schild et al. reference includes alternating sets of channels together with an air pump and valve assembly designed to "cause adjacent channels 12 to be inflated and deflated alternately so that the weight of the user is carried alternately on discrete regions defined by the two sets of channels." (citation omitted).
On the other hand, claim 1 as now amended specifically and unambiguously recites means for introduction of positive pressure air into the chamber in order to "continuously maintain positive air conditions throughout the entirety of operation of said mattress apparatus..." In no way does the alternating pad of the Schild et al. reference supply positive air pressure throughout the entirety of the chamber during all operations of the mattress. Indeed, this is specifically to be avoided in Schild et al. and to this end the respective channels are alternately supplied with positive pressure air and then deflated. Moreover and very importantly, the Schild et al. reference does not provide an internal or lower chamber having air permeable upper wall means as clearly claimed in Claim 1. To the contrary, the upper sheet 11 of the pad 28 is formed of "plastic", and the two sheets 11 are hermetically sealed together (see col. 3, lines 28 ff.). Obviously, Schild et. al. does not employ an upper wall which is constructed "for substantially uniform passage of air therethrough over substantially the entire plan surface area of said upper wall", as is specifically recited in Claim 1 as amended.
The Gammons et al. reference is likewise very different from the structure as claimed in the present claims. In Gammons et. al. the mattress 3 has two sets of independent passages which are alternately inflated by pumping means 10.
Above the mattress 3 is provided a diffusion pad 4 of open cell foam material. During inflation of either of the passages 13 or 14, vent holes 24 and 25 discharge a portion of the ventilating gas for an attempt to ventilate the patient through the porous pad 4. Here again, though, it will be readily perceived that Gammons et al. does not employ a chamber having an upper wall which is constructed for substantially uniform air flow through substantially the entire plan surface of the upper wall. Moreover, Gammons et al. does not provide means for continuously maintaining positive air pressure conditions throughout the entirety of the lower chamber during the entirety of the operation of the mattress apparatus. As noted with respect to the Schild et al. reference, the alternating inflation-deflation concept is the antithesis of the structure now claimed.
Plaintiff's Ex. 2, Tab D., 4-5.
On December 30, 1986, the PTO issued KCJ the '767 patent. In doing so it approved Claim 1, including the amendments to the claim which are set forth in italics below:
We claim:
1. "An air flotation, ventilated mattress apparatus comprising:
[a)] means defining a lower, continuous, inflatable chamber having an air-permeable, flexible upper wall portion,
[b)] said upper wall portion being constructed for substantially uniform airflow therethrough over substantially the entire plan surface area of said upper wall portion;
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