Monday, February 02, 2009

All appellants lose at CAFC in KCI v. Blue Sky on vacuum bandages

The CAFC concluded:

For the foregoing reasons, we affirm the district court’s denial of Defendants’
motion for JMOL of obviousness and its determinations that certain claim terms were
not indefinite. We also deny Defendants’ request for a new trial on obviousness. With
respect to KCI’s cross-appeal, we affirm the district court’s denial of KCI’s motion for
JMOL of infringement and its request for a new trial on infringement.

KCI was the plaintiff. The good news for KCI was the patents were not found invalid; the bad news, they weren't
infringed either. The CAFC wrote:

After a six week trial in the United States District Court for
the Western District of Texas, the jury returned a verdict that the asserted patents were
not shown to be invalid, unenforceable, or infringed. The jury also found against KCI on
its false advertising, unfair competition, and conspiracy claims.

There was a claim construction issue. The CAFC wrote:

Defendants argued before the first
claim construction order that “treating a wound,” as used in claim 13 of the ’643 patent,
should be construed as “giving medical care to an injury,” or in the alternative, “giving
medical care to (1) trauma to any of the tissues in the body, especially that caused by
physical means and with interruption of continuity [or] (2) a surgical incision.” Kinetic
Concepts, Inc. v. Blue Sky Med. Corp., No. 03-CV-0832, at 5 (W.D. Tex. June 28, 2005)
(“Order Construing Patent ’643 Terms”) (alteration in original). In response, KCI argued
that “treating a wound” should be construed to mean “treating tissue damage to the
surface of the body, including the epithelial and subcutaneous layers,” or in the
alternative, should not be construed because the jury would have no difficulty
understanding the phrase’s ordinary meaning

The CAFC used the patent specification to LIMIT the scope of the meaning of "wound":

All of the examples described in the specification
involve skin wounds
. See id. at 1321 (“Properly viewed, the ‘ordinary meaning’ of a
claim term is its meaning to the ordinary artisan after reading the entire patent.”). To
construe “wound” to include fistulae and “pus pockets” would thus expand the scope of
the claims far beyond anything described in the specification
. See Nystrom v. TREX
Co., 424 F.3d 1136, 1145 (Fed. Cir. 2005) (“[I]n the absence of something in the written
description and/or prosecution history to provide explicit or implicit notice to the public—
i.e., those of ordinary skill in the art—that the inventor intended a disputed term to cover
more than the ordinary and customary meaning revealed by the context of the intrinsic
record, it is improper to read the term to encompass a broader definition simply because
it may be found in a dictionary, treatise, or other extrinsic source.”).

Of evidence issues, the inventor testified AND the defense expert was impeached based on
deposition testimony:

For example, Dr. Argenta, a
witness for KCI and one of the named inventors on the asserted patents, testified that
the Chariker-Jeter system is “totally different” from the claimed invention. Specifically,
Dr. Argenta stated that the Chariker-Jeter method was designed for draining the effluent
from fistulae, not treating a wound in order to increase granulation. Additionally, KCI’s
expert, Dr. Orgill, testified that the Chariker-Jeter references “deal[] with draining fistulas
only, no[t] healing of the wound.” With respect to Dr. Chariker’s testimony about the use
of the method on a patient whose wound did not include a fistula, KCI purports to have
impeached Dr. Chariker’s testimony about this patient with contradictory deposition

The Exxon case was cited on the indefiniteness issue:

“If the meaning of the claim is discernible, even though the task may be
formidable and the conclusion may be one over which reasonable persons will disagree,
we have held the claim sufficiently clear to avoid invalidity on indefiniteness grounds.”
Exxon Res. & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir. 2001).
Definiteness is a question of law, which we review de novo. Id. at 1376.

Of multiple methods for measuring:

Relying on Honeywell International, Inc. v. International Trade Commission, 341
F.3d 1332, 1339-40 (Fed. Cir. 2003), Defendants also argue that “reduction in bacterial
density in the wound by at least 50%” is indefinite because there are several methods
for measuring bacterial density, each of which may yield a drastically different result,
and a person of ordinary skill in the art would not know which method to use. However,
KCI responds that a person of ordinary skill in the art would know which method to use
because Example 2 of the ’643 patent describes a particular method. ’643 patent col.15
ll.58-65. We agree with KCI that Honeywell does not control where, as here, several
methods for calculating reduction in bacterial density are available but the specification
discloses one particular method. Thus, we conclude that “reduction in bacterial density
in the wound by at least 50%” is not indefinite.

Judge Dyk dissented and began:

I respectfully dissent from the majority’s holding that affirms the judgment that the
claims are nonobvious. In my view, the majority improperly holds that the claim term
“wound” can be limited to the disclosed embodiments in the specification, and, having
done so, then misreads the specification as showing only embodiments treating harm to
the surface of the body or skin wounds.

Citing Phillips, Judge Dyk wrote:

However, it is improper to import limitations from the specification into
the claims where there is no indication that the specific examples in the specification are
intended to be strictly coextensive with the claim. (...) In my view, our decision in Phillips bars us
from construing the claims as limited by the specification examples, and the majority’s
approach is without support in our post-Phillips cases.

Of the use of the word "include":

The use of the illustrative and open language of “include”
demonstrates that there may be other types of wounds that the specification does not
expressly point out, but that would nonetheless be covered by the claim term “wound.”
See SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d 1278, 1284 (Fed. Cir. 2005);
Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1344-45 (Fed. Cir. 2003).
Throughout the specifications, the term “wound” is used only in this broad and inclusive
way. See, e.g., ’643 Patent col.13 ll.23-29.

Footnote 4:

To be sure, one of the identified purposes of the invention applies only to the
skin. See ’643 Patent col.1 ll.20-25 (describing the “zone of stasis” in which blood flow
to the skin around a wound is restricted as a problem addressed by the invention).
However, we have held that “[t]he court’s task is not to limit claim language to exclude
particular devices because they do not serve a perceived ‘purpose’ of the invention. . . .
An invention may possess a number of advantages or purposes, and there is no
requirement that every claim directed to that invention be limited to encompass all of
them.” E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1370 (Fed. Cir. 2003).

***See also


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