Nomos Corp. v. Brainlab, Inc.
| Decision Date | 28 March 2002 |
| Docket Number | No. CIV.A.98-788-JJF.,CIV.A.98-788-JJF. |
| Citation | 195 F.Supp.2d 606 |
| Parties | NOMOS CORPORATION, Plaintiff, v. BRAINLAB, INC. and BrainLAB USA, Inc., Defendants. |
| Court | U.S. District Court — District of Delaware |
Harold Pezzner, Connolly, Bove, Lodge & Hutz, L.L.P., Wilmington, DE, for Plaintiff.
Matthew B. Lehr, Maryellen Noreika, Morris, Nichols, Arsht and Tunnel, Wilmington, DE, for Defendants.
This action was brought by Plaintiff, NOMOS Corporation ("NOMOS") against Defendants BrainLAB, Inc. and BrainLAB USA, Inc. (collectively "BrainLAB") alleging infringement of United States Patent No. 5,411,026 (the "'026 Patent"). The parties briefed their respective positions on claim construction, and the Court conducted a Markman hearing on the disputed terms in the '026 Patent. This Memorandum Opinion presents the Court's construction of the disputed terms in the '026 Patent.
The '026 Patent describes a method and apparatus for verifying the position of a cancerous lesion on a patient's body which is to be treated by a radiation therapy device operating in accordance with a radiation therapy plan. ('026 Patent, col. 1, 1. 7-10). A frequent problem in treating patients with these lesions is identifying where the lesion is located at the time the radiation therapy treatment is occurring. Conventionally, the location of the lesion is determined with a CT scan of the patient. From this CT scan, the surgeon develops a radiation treatment plan to highlight the areas he or she wants treated with radiation. As a result of the positioning of the patient on the treatment table and the lapse of time between the CT scan and the radiation therapy treatment, the location of the lesion may change. In the past, radiation therapy plans targeted a larger area of the patient than was necessary to account for the possible change in location of the lesion. By targeting a larger area than the lesion actually occupied, however, a patient's healthy tissue and organs could be exposed to damaging radiation. To avoid this problem, physicians would often decrease the dose of radiation administered to the patient. However, the decreased dose of radiation was often insufficient to properly treat the target area. The technology of the '026 Patent is meant to avoid these problems with conventional radiation therapy treatment, and provide a means by which the location of the lesion to be treated by the radiation therapy device can be verified within the body of the patient for use in a radiation treatment plan for the patient.
The '026 Patent discloses a method and apparatus for verifying the position of a lesion in a patient's body by comparing the location of the lesion as depicted in a CT scan with the position of the lesion as depicted in an ultrasound images. ('026 Patent, Abstract). The invention includes the steps of (1) disposing the patient on a treatment table of a radiation therapy device, (2) disposing on the treatment table a means for generating an ultrasound image, (3) generating at least one two-dimensional ultrasound image of the lesion in the patient's body, (4) outlining the outer surface of the lesion in the ultrasound image and (5) comparing the outlines of the lesion in the ultrasound image to the outline of the lesion generated by one of the diagnostic images. ('026 Patent, col. 2, 1. 45-62).
The specification of the '026 Patent discloses a system used with a radiation therapy device such as a linear accelerator that delivers precise amounts of radiation to the lesion. According to the specification the claimed invention uses an ultrasound probe mounted to the treatment table so that it is maintained perpendicular to the treatment table. ('026 Patent, col. 1, 11. 17-22). The ultrasound probe is also located above the lesion to be treated, and is moved downward to contact the patient. ('026 Patent, col. 1, 11. 17-22 & Fig. 5).
The ultrasound probe then may be rotated or moved along the long axis of the treatment table to generate a series of ultrasound images of the lesion. ('026 Patent, col. 7, 11. 27-31). These ultrasound images need to be compared with the diagnostic images taken by the CT scan in order to determine the precise location of the lesion. To effectuate this comparison, the position of the ultrasound probe must be determined for each ultrasound image generated. The specification of the '026 Patent describes the use of a position sensing system consisting of light emitting diodes (LEDs) or ultrasonic emitters mounted to the ultrasound probe and a sensor to identify the location of the ultrasound probe with respect to the linear accelerator so that the images generated by the ultrasound probe can be accurately compared to the original images generated by the CT scan of the patient and a more precise treatment area can be determined. ('026 Patent, col. 8, 11. 1-38).
Claim construction is a question of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-78 (Fed.Cir. 1995), aff'd, 517 U.S. 370, 388-90, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). When construing the claims of a patent, a court considers the literal language of the claim, the patent specification and the prosecution history. Markman, 52 F.3d at 979. A court may consider extrinsic evidence, including expert and inventor testimony, dictionaries, and learned treatises, in order to assist it in construing the true meaning of the language used in the patent. Id. at 979-80 (citations omitted). A court should interpret the language in a claim by applying the ordinary and accustomed meaning of the words in the claim. Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 759 (Fed.Cir.1984). However, if the patent inventor clearly supplies a different meaning, the claim should be interpreted accordingly. Markman, 52 F.3d at 980 (). If possible, claims should be construed to uphold validity. In re Yamamoto, 740 F.2d 1569, 1571 & n.* (Fed.Cir.1984) (citations omitted).
NOMOS asserts that BrainLAB's ExacTrac device infringes Claims 1, 5, 6, 7, 8, 14 and 15 of the '026 Patent. Claim 5 of the '026 Patent is dependant on Claim 1 of the '026 Patent. Claims 7, 8, 14 and 15 of the '026 Patent are dependent on Claim 6 of the '026 Patent. The parties have focused their arguments on Claims 1 and 6 of the '026 Patent, and therefore, the Court will likewise focus its discussion on Claims 1 and 6 of the '026 Patent.1
In full, Claim 1 of the '026 Patent provides:
A lesion position verification system for use in a radiation therapy plan, for use with a radiation therapy device, for treating a lesion within a body of a patient, comprising:
(a) a means for generating at least one ultrasound image of the lesion in the patient's body; and
(b) a means for indicating the position, with respect to the radiation therapy device, of the means for generating the at least one ultrasound image when the ultrasound image is generated, whereby the position of the lesion in the ultrasound image can be compared with a position of the lesion in the radiation therapy plan.
('026 Patent, col. 12, 1. 7-19).
The parties have raised for construction the means-plus-function elements of paragraphs (a) and (b).2 Accordingly, the Court will turn to the construction of the disputed terms at issue.
Although the parties' dispute the meaning of this phrase, the parties agree that paragraph (a) is a "means-plus-function" limitation, the interpretation of which is governed by 35 U.S.C. § 112, ¶ 6. In pertinent part, Section 112, ¶ 6 provides:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claims shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereto.
Although use of means-plus-function language in a claim is permissible, a means clause does not encompass every means for performing the specified function. The Laitram Corporation v. Rexnord, 939 F.2d 1533, 1535 (Fed.Cir.1991). Rather, the limitation must be construed "to cover the corresponding structure, material, or acts described in the specification and equivalents thereof." Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259, 1266 (Fed.Cir.1999). Accordingly, to construe this phrase the Court is required to identify the structure in the '026 Patent which corresponds to the "means for generating at least one ultrasound image" and determine the specific function of the "means for generating at least one ultrasound image." Lockheed Martin Corp. v. Space Systems/Loral, Inc., 249 F.3d 1314 (Fed. Cir.2001).
NOMOS contends that the function which is performed by the means described in paragraph (a) is that of "generating at least one ultrasound image of the lesion in the patient's body." (D.I. 80 at 8). NOMOS further contends that the structure corresponding to this means is an ultrasound probe.
BrainLAB apparently agrees with NOMOS that the function of paragraph (a) is generating at least one ultrasound image of the lesion in the patient's body. (D.I. 82 at 12). However, BrainLAB disagrees with NOMOS's identification of the corresponding structures. According to BrainLAB the corresponding structures should be identified as
a fixed ultrasound probe and a bracket that maintains the ultrasound probe perpendicular to the treatment table and constrains it to rotate or move along the axis of the table in order to generate...
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