Massachusetts Patent Litigation Wrap Up – June 2018

Fish & Richardson

This post is part of a monthly series summarizing notable activity in patent litigation in the District of Massachusetts, including short summaries of substantive orders.

Ethicon Endo-Surgery, Inc. et al. v. Covidien LP et al.  (Sorokin, J.)

  • Order On Claim Construction

Plaintiff Ethicon Endo-Surgery Inc. and Ethican Endo-Surgery LLC (collectively “Ethicon”) seek a declaratory judgment against Covidien LP, Covidien Sales LLC, and Covidien AG (collectively, “Covidien”) for non-infringement of Covidien’s patents.  Covidien, in turn, counterclaimed against Ethicon for infringement of four of Covidien’s patents directed to surgical instruments used to seal and cut tissue or blood vessels.  Ethicon responded by arguing that those four patents were not only invalid but also not infringed.  On June 21, 2018, the Court issued an order construing 10 terms appearing in three of Covidien’s four asserted patents.

“Stop Members”

Ethicon sought to construe “stop members” in its plural form, meaning that an accused product would only meet this limitation if it contained multiple stop members.  Covidien sought to construe the term in its singular form, meaning that even if the accused product has only one stop member, it would meet this limitation; however, Covidien also noted that it would not oppose a construction in the plural form, provided that the pluralization means “two or more” stop members.  Each party relied only on the claims and the specification, declining to provide any extrinsic evidence.  The Court construed “stop members” in its plural form, noting that Covidien’s construction “unnecessarily injects ambiguity into an otherwise clear term.”


The claims in question further state that the “stop members” discussed above are “non-conductive.”  Ethicon argued that “non-conductive” should follow its plain and ordinary meaning so that the “stop members…are not capable of conducting electricity.”  Covidien, on the other hand, argued for a construction that accounted for the benefits of the stop members as detailed in the specification of the patent in question, “avoiding short-circuiting by preventing current from passing directly between the seal surfaces.”  The Court modified Ethicon’s proposed construction, finding that “non-conductive” referred to “stop members that are not capable of conducting an amount of electricity significant to the operation of the device,” accounting for the fact that even insulating materials conduct trace amounts of electricity.

“Uniform Distance between the Jaw Members”

Ethicon sought to construe this term to mean that the distance between jaw members are the same at all times, which Covidien sought to construe this term to mean that the distance between jaw members is the same only when holding tissue.  The Court modified Ethicon’s proposed construction in finding that this term referred to “a distance between the jaw members that is the same when the jaw members are in the closed position,” accounting for the fact the uniform distance term appears in the patent in relation to grasping, sealing, or cutting tissue.

“Disposed Along the Length of at Least One of the Seal Surfaces”

The claims in question further state that the “stop members” discussed above are “disposed along the length of at least one of the seal surfaces.”  Ethicon proposed that this term means that the stop members are “disposed along the length of at least one of the seal surfaces from the distal end to the proximal end,” while Covidien proposed that this term means that the stop members are “disposed from a proximal portion to a distal portion of one of the seal surfaces.”  The Court found that after Ethicon disavowed the interpretation that from “end to end” could mean from “tip to tip,” the parties no longer disputed the meaning of this term and adopted Ethicon’s proposed construction with the additional limitation that from “end to end” did not mean “tip to tip.”

“Are Disposed Along the Same Plane on the Seal Surface”

Ethicon argued that this term was indefinite while Covidien suggested that this term means that the stop members “intersect the plane formed by the seal surface.”  The Court found that the “plain and ordinary meaning of the claim language makes clear that the relevant plane is created by the seal surface itself, and is not a plane created by the tops of the stop members (above the seal surface), or by the bottoms of stop members.” To that end, the Court modified Covidien’s proposal “to explicitly encompass stop members which emerge through or begin at the seal surface,” accounting for that fact that during the Markman hearing, Covidien stated that it had “intended that its construction do so.”

“The Jaw Members Movable with Respect to the Elongated Shaft”

Ethicon and Covidien disagreed over whether this limitation requires that one jaw member move or both.  The Court noted that the plain language of the claim term was pluralized, implying that it was meant to require both jaw members to move, finding that both jaw members must move.

“A Plane is Formed between the Opposing Sealing Surfaces”

Ethicon argued that the term was indefinite, while Covidien proposed that this term refers to “an imaginary flat surface bisecting the opposing sealing surfaces when grasping tissue.”  The Court declined to construe this term, finding that Ethicon’s indefiniteness arguments that “a gap exists between the opposing jaw members when they are closed” and that “basic geometry dictates that an unlimited number of planes exist within such a three-dimensional space” had merit.  The Court deferred such a finding until discovery is complete.

“Of Unitary Construction”

Ethicon suggested that this term describes a surgical device built as a “single, indivisible component,” while Covidien suggested that this term means that the surgical device is “constructed as a single unit.”  The Court adopted Covidien’s construction, noting that “[n]othing in the patent limits the scope of the claim to devices with indivisible movable handles.”

“A Drive Flange / a Drive Flange Operably Coupled to the Drive Sleeve”

Ethicon proposed that “drive flange” be construed to mean “a force-actuating and projecting rib or rim,” while Covidien proposed it meant “a force-actuating protrusion.”  Referring to the dictionary definition of “flange,” the Court adopted Ethicon’s narrower proposal.  The Court did not credit Covidien’s expert’s opinion whose testimony suggested that the broader construction was appropriate because the expert was not able to “think of any flanges…that would not be protrusions” in this application.

While Ethicon proposed that “operably coupled to the drive sleeve” be construed to mean “abutting a drive assembly for imparting reciprocating movement to the drive sleeve,” Covidien proposed that this term be construed as “linked to the drive sleeve for imparting movement thereto.”  The Court adopted elements from both parties proposed constructions.  First, the Court found that the drive flange need not be directly linked to the drive sleeve to be “operably coupled,” referring to the plain and ordinary meaning of “operable coupled.”  Specifically, although one embodiment of the invention in the patent showed the drive flange directly linked to the drive sleeve, the claims did not require this.  However, the Court went on to find that the drive flange imparted specifically reciprocating movement because the specification used the phrases drive sleeve and reciprocating sleeve interchangeably.  As such, the Court construed this term to mean “linked to the drive sleeve for imparting reciprocating movement thereto.”

“Finger Loop”

Ethicon proposed that this term mean “a closed, finger-receiving structure that is generally round or oval-shaped,” while Covidien sought a broader construction:  “a closed or partially open curve for receiving a finger(s).”  First off, the Court noted that neither party brought forth any evidence that “loop” should be construed as anything but a closed structure, its plain and ordinary meaning (as supported by its dictionary definition).  Secondly, the court found no reason to limit the scope of loop to a round or oval structure in the context of the patent in question.  Particularly, the patent refers to a variety of loop structures including C-Shaped, U-Shaped, and Scoop-Like loop structures.  As such, the Court construed this term to mean “closed curve for receiving one or more fingers.”

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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