June 11, 2007

I will periodically post case citations from the Federal Circuit along with the date of the opinion/order and a brief list of the legal topics discussed therein (specifically those with additional embedded case law citations). My goal is to post new cases on a weekly basis. This posting covers the first two patent cases that were appealed from the district court level and decided (or orders issued) by the Federal Circuit during the 23rd calendar week of 2007. All opinions are precedential unless otherwise indicated.

NMT Medical, Inc., et al. v. Cardia, Inc. (06/06/2007, non-precedential): appeal of grant of summary judgment to defendant Cardia that it’s accused device did not infringe the asserted patent (of which the plaintiff’s are assignees); summary judgment vacated for district court error by finding no triable issues of fact as to most of the asserted claims and by erroneously construing the other claim at issue; discussion of patent related to implanted medical devices used to repair heart defects (U.S. Patent No. 5,451,235, entitled “Occluder and method for repair of cardiac and vascular defects”); “[c]onstruction of a means-plus-function claim limitation requires the court to identify the claimed function and then to locate structure in the specification which has been clearly linked to that function”; once a means-plus-function claim is construed, literal infringement is analyzed by determining whether “the accused device employs structure identical or equivalent to the structure disclosed in the patent and . . . the accused device performs the identical function specified in the claim”; a triable issue of fact on the question of substantial differences between the devices remains, so summary judgment that claims 1-5 were not infringed is vacated; “[T]he prosecution history can often inform the meaning of the claim language by demonstrating . . . whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be”; courts have “declined to apply the doctrine of prosecution disclaimer where the alleged disavowal of claim scope is ambiguous”; correct construction of claim 12 doesn’t require a “direct” connection, and since the district court relied on an incorrect construction of claim 12, summary judgment of noninfringement as to claim 12 is vacated; request for summary judgment for infringement denied

Pfizer, Inc. v. Mylan Laboratories, Inc., et al. (order) (06/08/2007, non-precedential): Mylan moved for summary reversal of the judgment and amended judgment of the district court, of which Pfizer opposes; in a separate case (Pfizer, Inc. v. Apotex, Inc.) decided at the Federal Circuit earlier this year, the Federal Circuit held that the claims asserted by Pfizer in the same patent are invalid; the Federal Circuit also denied Pfizer's petition for rehearing en banc in that case and the mandate issued; Mylan's motion for summary reversal is granted, and the district court's judgment and amended judgment are reversed

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Mark Reichel
Reichel IP LLC

I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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