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Celsis In Vitro, Inc v. Cellzdirect

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


March 25, 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

SUPPLEMENT TO MEMORANDUM OPINION AND ORDER

This Court has engaged in a post-issuance review of its March 24 memorandum opinion and order ("Opinion")--a sort of "last look"--and that review has revealed that the Opinion at 2 contains an unintentionally inaccurate conflation of Claims 1 and 10 of the '929 Patent*fn1 by characterizing the latter as "dependent" on the former. This supplement is issued to correct that inaccuracy.

Being "dependent" is not literally true of Claim 10, as it is of Claims 2 through 9, of the '929 Patent. Instead Claim 10 is "dependent" in the non-technical sense that its description of not "requiring a density gradient step after thawing the hepatocytes for the second time" (Col. 20:58-59) necessarily embraces the use of the density gradient step called for in Claim 1 (Col. 19:62-64) the first time around (something that is confirmed by both the patent's specification and its prosecution history).

That usage brings into play the entire discussion in the Opinion as to the necessity of a "density gradient medium" in performing the density gradient step. And in turn that means that LTC's newly-developed method bars any finding of LTC's infringement of Claim 10, just as it does as to Claim 1.


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