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Celsis In Vitro, Inc. v. Cellzdirect, Inc.

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

February 13, 2014

CELSIS IN VITRO, INC., 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 Corporation, Carlsbad, CA; 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 Corporation, Carlsbad, CA; 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: Michael R Mccarthy, Ii, PRO HAC VICE, Parsons Behle & Latimer, Salt Lake City, UT; 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.

OPINION

Page 961

MEMORANDUM OPINION AND ORDER[1]

Milton I. Shadur, Senior United States District Judge.

This memorandum opinion and order begins with a mea culpa on the part of this Court. Because of the overwhelming paper blizzard [2] represented by LTC's motion for partial summary judgment on three discrete issues -- or more accurately, by Celsis' responses to that motion (which, as it turned out on analysis, proved largely

Page 962

to be an effort to do what John Milton's Paradise Lost described as " make the worse appear the better reason" )[3] -- and because the subjects could not lend themselves to the normal process of assigning the initial preparation and generation of a draft opinion to one of this Court's excellent law clerks, the project repeatedly found itself moved aside while this Court was fully occupied with other responsibilities on its calendar.

But a block of time has opened up on the calendar as the result of a long-scheduled criminal trial having unexpectedly eventuated in a change of plea. Hence this Court has sought to take advantage of that hiatus to address the three-headed motion. And as will be seen, the presentation (though not the thought process involved) can be made in comparatively short compass.

Noninfringement

Celsis, having already lost on the issue both before this Court (see its March 24, 2011 memorandum opinion and order, 2011 WL 11564931) and before the Court of Appeals for the Federal Circuit in its October 21, 2011 per curiam opinion affirming this Court, again attempts to bring LTC's elutriation process under the rubric of the Celsis patent by once more advancing its own rejected reading of its patent's language and scope. This Court sees no reason to reconsider what it held in its opinion, which was issued after a three-day evidentiary hearing that denied Celsis' second request for injunctive relief. And because the Federal Circuit's per curiam opinion is unpublished, this opinion will quote the Federal Circuit's determination at length:

After full de novo review of the record, the parties' briefs, and counsels' arguments, and for the reasons articulated in the district court's decision, we agree with, and thus adopt, the district court's construction of " density gradient fractionation" and " without requiring a density gradient fractionation step after thawing the hepatocytes for a second time." 2 In light of these claim constructions, the district court did not abuse its discretion in concluding that a showing of literal infringement is not likely. As it relates to the doctrine of equivalents, although the district court referred to the differences in LTC'S new method as the " function," rather than the " way," this minor misidentification does not alter the analysis. When read in its entirety, the district court's decision as to Celsis' likelihood of success under the doctrine of equivalents is clear in its conclusion that the way in which LTC's new method functions (using a buffer, fluid counterflow force, and centrifugal force) is substantially different from the way in which the ...

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