TriMed Strikes Out Stryker Before Federal Circuit.Even though the claim recited the absence of structure, or a hole, the U.S. Court of Appeals for the Federal Circuit found the claim language articulated sufficient structure to perform the recited functions, fell outside the ambit of s. 112 [paragraph] 6 and required a construction that presented a genuine issue of material fact as to infringement. TriMed, Inc. v. Stryker Corp., Case No. 07-1327 (Fed. Cir., Jan. 29, 2008) (Moore, J.). TriMed owns U.S. Patent No. 5,931,839 (the '839 patent) directed to implantable devices for fixing bone fractures using screws, pins and a plate. The plate has holes on one end for receiving the screws and on the other end for receiving the pins. In one embodiment em·bod·i·ment n. 1. The act of embodying or the state of being embodied. 2. One that embodies: "The flag is the embodiment, not of sentiment, but of history" of the '839 patent, the bone fracture is secured by placing the plate over the fracture, extending from a stable bone to the fractured bone fragment. The screws are inserted through the holes on the one end to secure the plate to the stable bone, and the pins are inserted through the holes on the other end at an angle so that, when the pins are inserted through the bone, the pins extend through the fractured bone fragment, traverse traverse - traversal the fracture and extend into the stable bone. Stryker manufactures and sells wrist fracture fixation fixation: see psychoanalysis. devices that operate in essentially the same manner and with essentially the same structure as that described in the '839 patent. Claim 1 states in part, "said holes in said plate providing means for allowing the pin to slide axially ax·i·al adj. 1. Relating to, characterized by, or forming an axis. 2. Located on, around, or in the direction of an axis. ax therein but preventing compression across the fracture, and stabilizing stabilizing, v to hold a limb motionless in order to ground its energy; a standard isometric resistance technique, it releases tension and lengthens muscle fibers. said near end of the pin against displacement in the plane of the plate." The district court found this claim language invoked s. 112 [paragraph] 6 and should be construed to require the holes in addition to another structure that performs the two recited functions of allowing the pin to slide and stabilizing the near end of the pin. Because the Stryker device did not include another structure that performed the recited functions, the district court granted Stryker's motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers of non-infringement. On appeal, Stryker argued that the prosecution history supported a means-plus-function construction of the claim and required an additional structure to perform the recited functions. In an interview summary during prosecution of the '839 patent, TriMed stated that agreement was reached that recitation rec·i·ta·tion n. 1. a. The act of reciting memorized materials in a public performance. b. The material so presented. 2. a. Oral delivery of prepared lessons by a pupil. b. in the claim of the functions "in a means-plus-function format and better defining the holes of the plate would distinguish over the prior art." TriMed subsequently amended Claim 1 to include the disputed claim language, which included a recitation of the term "means" in conjunction with the two recited functions. Notwithstanding the above correlation between the interview summary and the amended claim language, the Federal Circuit disagreed that the language should be governed by s. 112 [paragraph] 6. The Court explained that stating "use of means-plus-function language would help overcome prior art does not magically transform language that clearly does not meet our legal tests Legal tests are various kinds of commonly-applied methods of evaluation used to resolve matters of jurisprudence.[1] In the context of a trial, a hearing, discovery, or other kinds of legal proceedings, the resolution of certain questions of fact or law may hinge on the for s. 112 [paragraph] 6 into means-plus-function language." The Court stated that, while the term "means" was used in the claim amendment, the remarks accompanying the amendment indicated that TriMed "intended for holes by themselves to constitute structure sufficient" for performing the recited functions. The Court further noted that TriMed submitted two declarations supporting the assertion that the functions could be performed solely by the holes. Based on this new construction of the claims, the Court reversed the district court's grant of summary judgment and remanded the case to the district court for further proceedings. Practice Note: It is noteworthy that the Court placed such an emphasis on the remarks accompanying the amendment. Notwithstanding the strong correlation between the statement in the interview summary and the amended claim language, the Court gave significant weight to the self-serving remarks. This case serves to remind us that such statements can sometimes be at least partially influential. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Mr Todd Hales
The church of Hales St Margaret is one of 124 existing round-tower churches in Norfolk. McDermott Will & Emery emery: see corundum. emery Granular rock consisting of a mixture of the mineral corundum (aluminum oxide, Al2O3) and iron oxides such as magnetite (Fe3O4) or hematite (Fe2O3). 600 Thirteenth Street NW Washington, DC 20005-3096 UNITED STATES United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. E-mail: pdevinsky@mwe.com URL URL in full Uniform Resource Locator Address of a resource on the Internet. The resource can be any type of file stored on a server, such as a Web page, a text file, a graphics file, or an application program. : www.mwe.com Click Here for related articles (c) Mondaq Ltd, 2008 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com |
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