Lexion Med. Llc v. Northgate Technologies Inc.

• Decision Date: 22 April 2011
• Docket Number: No. 2009–1494.,2009–1494.
• Citation: 641 F.3d 1352,98 U.S.P.Q.2d 1388
• Court: U.S. Court of Appeals — Federal Circuit
• Parties: LEXION MEDICAL, LLC, Plaintiff–Appellee,v.NORTHGATE TECHNOLOGIES, INC., Smith & Nephew, Inc., and Linvatec Corporation, Defendants–Appellants.

641 F.3d 1352

98 U.S.P.Q.2d 1388

LEXION MEDICAL, LLC, Plaintiff–Appellee,

v.NORTHGATE TECHNOLOGIES, INC., Smith & Nephew, Inc., and Linvatec Corporation, Defendants–Appellants.

No. 2009–1494.

United States Court of Appeals, Federal Circuit.

April 22, 2011.

David G. Willie, Baker Botts, L.L.P., of Dallas, TX, argued for plaintiff-appellee. With him on the brief was David O. Taylor.Meredith M. Addy, Brinks Hofer Gilson & Lione, of Chicago, IL, argued for defendants-appellants. With her on the brief were Timothy Q. Delaney, Timothy P. Lucier and Laura A. Lydigsen.Before RADER, Chief Judge, DYK and PROST, Circuit Judges.

RADER, Chief Judge.

The United States District Court for the Northern District of Illinois entered summary judgment that Defendants–Appellants Northgate Technologies, Inc., Smith & Nephew, Inc., and Linvatec Corp. (collectively, “Northgate”) infringe United States Patent No. 5,411,474 (“'474 patent”). Lexion Med., LLC. v. Northgate Techs., 618 F.Supp.2d 896 (N.D.Ill.2009). Contesting this judgment, Northgate questions the district court's construction of the claim limitation “having a temperature within 2°C of the predetermined temperature.” Because the record amply supports the trial court's interpretation of this claim term and we find no genuine issue of material fact regarding infringement, this court affirms.

I

To create more working space during laparoscopic procedures, surgeons inflate the abdominal cavity with gas. Traditionally, an insufflator directly pumped gases used for laparoscopic procedures through a tube and into a patient's body. The gases were relatively cold (generally at least 17°C below body temperature), '474 patent col.1 ll.63–64, and dry (200 parts per million or less of water vapor), id. at col.2 ll.35–36.

Because of the cold and dry gas, patients could experience post-operative shivering and shoulder pain as a common side effect of laparoscopic procedures. To minimize this side effect, the '474 patent discloses and claims an apparatus for heating and humidifying gas to a predetermined and preset temperature for use during laparoscopic procedures. Id. at col.3 ll.44–48.

The claimed apparatus aims to deliver gas “within 2°C of the predetermined temperature.” Id. at col.4 ll.31–32. For example, the patent provides for gas being delivered “while still maintained at the desired temperature, or at least within about 2°C of it, and preferably within about 0.5°C[.]” Id. at col.9 ll.28–30. The specification also states that upon activation “there is a lag time of milliseconds for sensing the temperature of gas and adjusting the heating to achieve the proper gas temperature.... [and that] approximately the first 12 to 15 cubic centimeters of gas leaving the apparatus after it is activated are cooler than the predetermined temperature.” Id. at col.9 ll.49–55.

Claims 11 and 12 of the '474 patent are at issue in this appeal. Claim 11 states:

11. A method of providing heated, humidified gas into a patient for an endoscopic procedure comprising the steps of:

a) directing pressure- and volumetric flow rate-controlled gas, received from an insufflator into a chamber having a means for heating the gas to a temperature within a predetermined range and a means for humidifying the gas and being disposed immediately adjacent to the patient, wherein the chamber is in flow communication with and immediately adjacent to a means for delivering the gas to the interior of the patient;

b) sensing the temperature of the gas as it exits the chamber to determine if it is within the predetermined range; and

c) actuating the heating means if the temperature of the gas is without the predetermined range;

d) humidifying the gas within the chamber; and

e) flowing the gas into the delivery means such that the gas enters the patient humidified and having a temperature within 2°C of the predetermined temperature and thus providing the gas.

Id. at col.12 ll.43–65 (emphasis added). Dependant claim 12 requires:

12. The method of claim 11, wherein the heating means and the humidifying means heat and humidify the gas simultaneously.

Id. at col.12 ll.66–68 (emphasis added).

Northgate's accused Humi–Flow device heats and humidifies gas from an insufflator. Gas from the insufflator passes through a tube connected to an inlet leading into the Humi–Flow's chamber. The gas is heated and humidified before being pushed through the Humi–Flow's outlet, into a tube, and then into a patient's body.

The Humi–Flow indirectly heats gas flowing through it. Heating elements within the Humi–Flow raise the temperature of a heater core. Gas passing through the Humi–Flow is heated through contact with that heater core. By maintaining the heater core at 70°C the passing gas is heated to 37°C.

The Plaintiff–Appellee Lexion Medical, LLC (“Lexion”) sued Northgate for infringement of both claims 11 and 12 of the '474 patent for making and selling its Humi–Flow device.

II

This case has previously appeared before this court. Lexion Med., LLC. v. Northgate Techs., Inc., 292 Fed.Appx. 42 (Fed.Cir.2008) (“ Lexion I ”). In Lexion I, this court, inter alia, vacated the district court's judgment of infringement of the '474 patent and remanded with new constructions of the claim limitations “means for humidifying,” “means for heating,” and “predetermined temperature.” Id. at 51–52. On remand, as noted, the district court granted Lexion's motion for summary judgment of infringement.

At the trial preceding Lexion I, Dr. John Burban (“Burban”) provided expert testimony that the Humi–Flow released gas “having a temperature within 2°C of the predetermined temperature.” The district court did not construe “predetermined temperature.” Burban's first declaration and data were premised on a proposed construction of “predetermined temperature” later rejected by this court in Lexion I.

Burban conducted two sets of experiments (“Test 1” and “Test 2”) to measure the temperature of gas heated by the Humi–Flow. These tests took temperature readings at the outlet, or exit, of the Humi–Flow, and at the exit of a trocar, or tube, leading to a water bath. The only difference between Test 1 and Test 2 was trocar placement.

Burban's first declaration analyzed data collected from both Test 1 and Test 2. Burban's analysis showed that the temperature range of gases coming from the Humi–Flow fit within Lexion's initial “range of range” construction of “predetermined temperature” and also satisfied “having a temperature within 2°C of the predetermined temperature.” Lexion's “range of range” construction of “predetermined temperature” explained that the claimed device was set to a predetermined temperature that was not a single temperature point, but was within a range of temperatures. With this construction of “predetermined temperature,” Lexion argued that the 2°C range in limitation (e) meant within 2°C of the predetermined temperature range, “a range of a range.”

At the trial preceding Lexion I, the jury returned a special verdict that Northgate induced and contributed to the infringement of the '474 patent. Lexion Med., LLC. v. Northgate Techs. Inc, No. 1:04–CV–5705, slip op. at 1 (N.D.Ill. Feb. 12, 2007). The district court denied Northgate's motion for Judgment as a Matter of Law and entered judgment for Lexion. Id. at 3–4. On appeal in Lexion I, this court construed “predetermined temperature” as “a single temperature point,” vacated the jury's verdict, and remanded for further proceedings on the issue of infringement. After remand from this court, Lexion I, 292 Fed.Appx. at 51–52, Lexion and Northgate cross-moved for summary judgment of infringement and noninfringement respectively.

On remand, Lexion filed a new expert declaration (“second declaration”) from Burban. Working with the new narrower construction of “predetermined temperature,” Burban's second declaration only analyzed a subset of the data from Test 1. The second declaration identified the temperatures entering the simulated patient to span a range of 3.64°C, and almost always within 2°C of 37°C, human body temperature. In its reply in support of its motion for summary judgment of non-infringement, Northgate objected to Burban's second declaration, arguing it made contradictory new arguments after the close of discovery, and thus violated Federal Rules of Civil Procedure 26(a)(2) and 37(c)(1).

Limitation (e) of claim 11 requires gas to enter the patient “humidified and having a temperature within 2°C of the predetermined temperature.” '474 patent col.12 ll.63–64. The district court held that limitation (e) of claim 11 did not require that the temperature range always be within 2°C of the predetermined temperature because the '474 specification discloses that temperatures “will, at times, fluctuate outside the four-degree range.” Lexion, 618 F.Supp.2d at 902. Based on this record, the district court granted summary judgment of literal infringement for Lexion. Id.

Northgate timely appealed the district court's grant of summary judgment. This court has jurisdiction under 28 U.S.C. § 1295(a)(1).

III

A.

Summary judgment in this case was premised in part on the district court's interpretation of limitation (e) of claim 11. Claim construction is a question of law which this court reviews without deference. Cybor Corp. v. FAS Techs. Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc).

This court gives words of a claim their ordinary and customary meaning. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (en banc). The customary meaning of a claim term is not determined in a vacuum and should be harmonized, to the extent possible, with the intrinsic record, as understood within the technological field of the invention. Id. at 1314 (citing Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed.Cir.2005)); see also ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed.Cir.2003) (“[T]he context of the surrounding words of the claim also must be considered in determining the...