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Celsis in Vitro, Inc. v. CellzDirect, Inc.

United States District Court, N.D. Illinois, Eastern Division

March 24, 2011

CELSIS IN VITRO, INC., a Maryland Corporation, Plaintiff,
v.
CELLZDIRECT, INC., a Delaware Corporation and wholly-owned subsidiary of INVITROGEN CORPORATION; and INVITROGEN CORPORATION, a Delaware Corporation. Defendants

For Celsis Holdings, Inc., In Vitro, Inc., Plaintiffs: Jordan A. Sigale, LEAD ATTORNEY, Adam Glenn Kelly, Julie Lynn Langdon, Loeb & Loeb LLP, Chicago, IL.

For CellzDirect, Inc., a Delaware Corporation and wholly-owned subsidiary, Defendant: C. Kevin Speirs, David G. Mangum, Francis M. Wikstrom, Michael R Mccarthy, Ii, PRO HAC VICE, Parsons, Behle & Latimer, Salt Lake City, UT; Jonathan Andrew Muenkel, Scott Miller, PRO HAC VICE, Life Technologies Corp., Carlsbad, CA; Kathryn B. Walter, Goldberg Kohn, Chicago, IL; Louis David Peterson, Michael Kevin Kirschner, Michael Ramsey Scott, PRO HAC VICE, Hillis Clark Martin & Peterson, P.S., Seattle, WA; Oscar L. Alcantara, Goldberg Kohn Ltd., Chicago, IL; Rip Finst, PRO HAC VICE, Carlsbad, CA; Robert David Donoghue, Holland & Knight LLP, Chicago, IL.

For Invitrogen Corporation, a Delaware Corporation, Defendant: Francis M. Wikstrom, Michael R Mccarthy, Ii, PRO HAC VICE, Parsons Behle & Latimer, Salt Lake City, UT; Jonathan Andrew Muenkel, Scott Miller, PRO HAC VICE, Life Technologies Corp., Carlsbad, CA; Kathryn B. Walter, Goldberg Kohn, Chicago, IL; Louis David Peterson, Michael Kevin Kirschner, Michael Ramsey Scott, PRO HAC VICE, Hillis Clark Martin & Peterson, P.S., Seattle, WA; Oscar L. Alcantara, Goldberg Kohn Ltd., Chicago, IL; Rip Finst, PRO HAC VICE, Carlsbad, CA; Robert David Donoghue, Holland & Knight LLP, Chicago, IL.

For In Vitro, Inc., Counter Defendant: Jordan A. Sigale, LEAD ATTORNEY, Adam Glenn Kelly, Julie Lynn Langdon, Loeb & Loeb LLP, Chicago, IL.

For Invitrogen Corporation, a Delaware Corporation, CellzDirect, Inc., a Delaware Corporation and wholly-owned subsidiary, Counter Claimants: Kathryn B. Walter, Goldberg Kohn, Chicago, IL; Louis David Peterson, Michael Kevin Kirschner, Michael Ramsey Scott, PRO HAC VICE, Hillis Clark Martin & Peterson, P.S., Seattle, WA; Michael R Mccarthy, Ii, PRO HAC VICE, Parsons Behle & Latimer, Salt Lake City, UT; Oscar L. Alcantara, Goldberg Kohn Ltd., Chicago, IL; Rip Finst, PRO HAC VICE, Carlsbad, CA; Robert David Donoghue, Holland & Knight LLP, Chicago, IL; Scott Miller, PRO HAC VICE, Life Technologies Corporation, Carlsbad, CA.

Milton I. Shadur, Senior United States District Judge. Magistrate Judge Martin C. Ashman.

Page 856

MEMORANDUM OPINION AND ORDER (PUBLIC ACCESS VERSION)

Milton I. Shadur, Senior United States District Judge

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 [1]) 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.[2] 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 '929 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:[3]

There's glory for you!
I don't know what you mean by " glory," Alice ...

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