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Celsis In Vitro, Inc v. Cellzdirect

March 24, 2011

CELSIS IN VITRO, INC., PLAINTIFF,
v.
CELLZDIRECT, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

At some point after this Court's July 15, 2010 issuance of a temporary restraining order that treated the method then being employed by defendants CellzDirect, Inc. and Invitrogen Corporation (referred to here as "LTC," treated as a singular noun*fn1 ) as having infringed United States Patent No. 7,604,929 (the '929 Patent), LTC returned to the laboratory and the figurative drawing board in an effort to design around the claims of the '929 Patent.*fn2 When LTC then returned with a claim that its efforts had been successful--that it had developed and was practicing a noninfringing method--this Court conducted a several-day evidentiary hearing earlier this month to address Celsis' Second Motion for Preliminary Injunction.

Now the litigants have complied with this Court's request to provide post-hearing supplemental submissions, without unduly overlapping the "mountains of paper" they had already tendered. As before, the parties have primarily focused on '939 Patent Claim 1, with some attention also being given to Claim 10 (and Celsis has also referred a bit to Claim 2 as an asserted aid to the construction of Claim 1). Because all of the other claims are dependent on Claim 1, if it is not infringed the entire patent is not infringed.

For convenient reference, this Court attaches page 11 from Celsis' Corrected Memorandum in support of its current motion for preliminary injunctive relief. That sets out Celsis' own characterization, based on the Declaration of its opinion witness Dr. Stephen Strom, of a number of the patent's critical terms as they assertedly would have been understood by a person of ordinary skill in the art at the time of the invention. But as will be seen, the first bullet point in that listing presents a meaningfully different construct from the normal meaning of the corresponding language in the patent itself--a difference that is fatal to Celsis' current infringement claim.

This opinion will consider both sides' lawyers' treatment of the disputed issues to the limited extent needed to resolve the preliminary injunction question. Regrettably each side's post-hearing submissions reveal that both sets of lawyers have, at least in part, engaged in the Humpty Dumpty approach to language construction:*fn3

There's glory for you!

I don't know what you mean by "glory," Alice said.

I meant, there's a nice knock-down argument for you!

But "glory" doesn't mean a nice knock-down argument, Alice objected.

When I use a word, Humpty Dumpty said in a rather scornful tone, it means just what I choose it to mean--neither more nor less.

Just one illustrative example on each side of the "v." sign will be referred to here.

Thus LTC's counsel have bent the words "without requiring a density gradient step" (found in '939 Patent Claim 1 at Col. 20:14) out of shape, as though those words meant "without performing a density gradient step." But because it is Celsis' (and not LTC's) burden that is at issue in determining infringement, that distortion does not affect the result.

This opinion turns then to the first component of Claim 1, on which Celsis has performed similarly improper surgery. Here is the actual language of the '939 Patent (at its Col. 19:62-64) that sets out the first element of Celsis' method, with the emphasized words being those purportedly defined in Celsis' first bullet point in the attachment to this opinion:

(A) subjecting hepatocytes that have been frozen and thawed to density gradient fractionation to separate viable ...


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