Thursday, August 12, 2010

Baran v. Medical Device: impact of case management order

At the end of the opinion in the Baran case, the CAFC upheld
the striking of portions of Baran's declaration in opposition to summary judgment:

We also find no merit in Dr. Baran’s argument that
the district court erred by striking portions of the declara-
tion that he submitted in opposition to MDTech’s motion
for summary judgment.

The reasoning was interesting:

Dr. Baran argues that his report should not have been
ruled untimely, because he was not a witness “retained or
specially employed to provide expert testimony” and
therefore was not required to prepare a written report
pursuant to Federal Rule of Civil Procedure 26(a)(2)(B).
But the fact that Dr. Baran was not required to prepare a
written report in the first instance does not mean that he
was exempt from the district court’s case management
deadlines once he opted to submit a written report. The
district court had broad discretion to fashion its case management deadlines,
and those deadlines applied to all expert reports, including ones not required by rule. See
Clarksville-Montgomery County Sch. Sys. v. U.S. Gypsum
Co., 925 F.2d 993, 998 (6th Cir. 1991); see also Esposito v.
Home Depot U.S.A., Inc., 590 F.3d 72, 77-78 & n.2 (1st
Cir. 2009). The district court was justified in excluding
Dr. Baran’s report to enforce compliance with those

Of OTHER matters in the case, the district court added a claim
limitation, which the CAFC approved:

The district court construed the term “detachable” in
claim 2 to mean that “the stylet is capable of being sepa-
rated or withdrawn from the cannula without loss or
.” The court found it significant that the specifica-
tion disclosed both a reusable embodiment and a single-
use embodiment, and that only the stylet of the reusable
embodiment was described as being “detachably engaged”
while the stylet of the single-use embodiment was de-
scribed as being “adhesively bonded.” The court rejected
the argument that an adhesively bonded stylet could also
be detachably engaged. Moreover, although the court
acknowledged that the construction of “without loss or
damage” might exclude the single-use embodiment from
claim 2, the court noted that it was not necessary for each
claim to cover every embodiment of the patent.
The district court construed the term “releasably” in a
similar manner, as requiring “separation without loss or
damage.” The court noted that claim 2 recited the second
connector means as being “releasably engag[ed],” and that
the specification described the same structure as being
“detachably affixed.” Accordingly, the court reasoned that
the patentee had used the terms “releasably” and “de-
tachably” with a similar meaning in mind. Based on that
cross-usage, the court applied essentially the same con-
struction to both terms.

Dr. Baran objects to that condition because it excludes the single-use em-
bodiment from the asserted patent claim and therefore
precludes his infringement claim against the BioPince,
which is a single-use device.


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