Norian v. Stryker: a tour of different patent issues for a patentee to worry about
In a case coming back to the CAFC after an earlier remand, defendant Stryker wins another summary judgment of noninfringement.
US Patent 6,002,065 of Norian was at issue with a claim to a kit for preparing calcium phosphate. The issue was whether Stryker's kit contained a solution of water and a sodium phosphate, with the important issue being the meaning of the words "a sodium phosphate."
The district court concluded that "a sodium phosphate" meant "a single sodium phosphate."
The CAFC cited to KCJ v. Kinetic Concepts, 223 F.3d 1351 for the general rule that "a" means one or more, in claims using the word "comprising." However, the CAFC also cited Elkay v. Ebco, 192 F.3d 973, in which it is stated that (a or an) can mean one or more than one, depending on context. [The CAFC did NOT cite to Insituform.]
The distinction between a colloid and a true solution comes up in the case (where have we seen this before?) Norian argued that the context of a claim amendment should be considered, so that prosecution history would not limit the claim in a different context. The CAFC noted that patent applicants frequently surrender more than is necessary to avoid prior art. [If the CAFC merely said patent applicants frequently surrender more than is necessary (period), we could resolve Festo!] The CAFC cited to Fantasy Sports v. Sportsline, 287 F.3d 1108.
There is an issue of product claim vs. product-by-process claim. (remember Exxon v. Lubrizol?)
Festo also comes up. Patentee Norian tried to argue "no surrender, therefore, no Festo." The CAFC disagreed, and Norian listed no exceptions and lost. An argument in the alternative might have helped.
US Patent 6,002,065 of Norian was at issue with a claim to a kit for preparing calcium phosphate. The issue was whether Stryker's kit contained a solution of water and a sodium phosphate, with the important issue being the meaning of the words "a sodium phosphate."
The district court concluded that "a sodium phosphate" meant "a single sodium phosphate."
The CAFC cited to KCJ v. Kinetic Concepts, 223 F.3d 1351 for the general rule that "a" means one or more, in claims using the word "comprising." However, the CAFC also cited Elkay v. Ebco, 192 F.3d 973, in which it is stated that (a or an) can mean one or more than one, depending on context. [The CAFC did NOT cite to Insituform.]
The distinction between a colloid and a true solution comes up in the case (where have we seen this before?) Norian argued that the context of a claim amendment should be considered, so that prosecution history would not limit the claim in a different context. The CAFC noted that patent applicants frequently surrender more than is necessary to avoid prior art. [If the CAFC merely said patent applicants frequently surrender more than is necessary (period), we could resolve Festo!] The CAFC cited to Fantasy Sports v. Sportsline, 287 F.3d 1108.
There is an issue of product claim vs. product-by-process claim. (remember Exxon v. Lubrizol?)
Festo also comes up. Patentee Norian tried to argue "no surrender, therefore, no Festo." The CAFC disagreed, and Norian listed no exceptions and lost. An argument in the alternative might have helped.
posted by Lawrence B. Ebert at 2:57 PM
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