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Endotach LLC v. Cook Medical Inc.

United States District Court, S.D. Indiana, Indianapolis Division

September 5, 2017

ENDOTACH LLC, Plaintiff,
v.
COOK MEDICAL INCORPORATED, Defendant.

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          LARRY J. MCKINNEY, JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

         After remand from the Court of Appeals for the Federal Circuit, the remaining issues in this case are directed to Plaintiff Endotach LLC's U.S. Patent No. 5, 122, 154 (the “'154 patent”). See Dkt. No. 271. This order addresses the relevant issues raised in Defendant Cook Medical Corporation's (“Cook's”) Motion for Summary Judgment of Noninfringement, Invalidity and No Willfulness. Dkt. No. 146. The Court rules as follows.

         I. SUMMARY JUDGMENT STANDARD

         As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990). Rule 56(a) provides in relevant part: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."

         Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials showing that a fact either is or cannot be genuinely disputed. Fed.R.Civ.P. 56(c)(1). A genuine issue of material fact exists whenever “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying applicable evidence. See Goodman, 621 F.3d at 654; Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).

         In evaluating a motion for summary judgment, the Court draws all reasonable inferences from undisputed facts in favor of the nonmoving party and views the disputed evidence in the light most favorable to the nonmoving party. See Berry v. Peterman, 60 F.3d 435, 438 (7th Cir. 2010); Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). If the moving party does not have the ultimate burden of proof on a claim, it is sufficient for the moving party to direct the Court to the lack of evidence as to an element of that claim. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n.3 (7th Cir. 1994). “If the nonmoving party fails to establish the existence of an element essential to [its] case, one on which [it] would bear the burden of proof at trial, summary judgment must be granted to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).

         II. BACKGROUND FACTS[1]

A. THE ‘154 PATENT INVENTION STORY

         The inventor, Dr. Valentine Rhodes (“Dr. Rhodes”), allegedly sketched early ideas of his invention on paper napkins and other scraps of paper, at least some of which he either threw away or otherwise destroyed shortly after drawing them. Dkt. No. 153-1, at 48; Dkt. No. 174 at 17. Brenda Rhodes (“Brenda”), Dr. Rhodes' wife, recalls that he had refined his idea regarding one device that “fit everything” and sketched a design on napkins in or around May 1989. Dkt. No. 174 at 17. Sonja Dungan (“Dungan”), Dr. Rhodes' “longtime secretary, ” recalls discussing a “Chinese finger cuff” idea with Dr. Rhodes in September or October 1989. Dkt. No. 174 at 17. Dungan further claims that on December 5, 1989, she witnessed and notarized Dr. Rhodes' “preliminary drawings, ” but she does not recall how long she reviewed the documents, and does not have a book in which she allegedly recorded the notarizations. Dkt. No. 153-1 at 50.

         In or around late March or late April 1990, Dr. Rhodes dictated a first draft of the ‘154 patent application via audiocassette tape and gave it to Dungan to transcribe. Id. On April 24, 1990, Dr. Rhodes had Ms. Dugan notarize a detailed set of drawings, and a draft patent application. Dkt. No. 174-19 at ¶¶ 40, 44.

         Some early sketches might have been in Dr. Rhodes' belongings and given to Brenda for safe-keeping; however, Brenda cannot find them and admits that some of Dr. Rhodes' and her papers may have been thrown away when she moved in 2009. Dkt. No. 153-1 at 48.

         William Cuffari (“Cuffari”) claims that he was a close friend of Dr. Rhodes' and that Dr. Rhodes showed him the early sketches of his design on paper napkins or other scraps and that he documented these meetings with Dr. Rhodes. Id. at 48. Cuffari claims that he kept papers and correspondence about Dr. Rhodes and/or his work, but they were destroyed in a 2005 flood. Id. Cuffari does not recall the season, day, month he allegedly saw Dr. Rhodes' sketches, or when they might have been created; he only recalls seeing one alleged drawing in 1988. Id.

         Barry Stein (“Stein”) of Caesar Rivise, was Dr. Rhodes' patent counsel. Id. at 46. Stein has practiced at Caesar Rivise since 1972, and has been recognized as a “SuperLawyer” patent litigator since 2005. Id. Stein claims to be “one of the country's leading Intellectual Property lawyers” and “has spent his entire professional career enforcing and protecting his clients' patents . . . .” Id. at 46-47. Stein has prosecuted patent applications for medical devices for many decades, has long known of Cook, and understood Cook to be “a player” in the medical device industry. Id. at 49. Based on his experience, Stein has long been familiar with the cardiovascular industry and stent developments. Id. USPTO records indicate that Stein prosecuted the Rhodes patents, but he “recall[s] little about these patent applications. It's over twenty years.” Id. Stein also does not remember anything relevant about drawings he turned over in discovery. Id. at 49-50. However, Endotach is relying upon Stein's documents to tell the invention story. Id. at 50 (citing Dkt. No. 136 at 5-9).

         Dr. Rhodes died in December 2000. Dkt. No. 144 at 9.

         B. THE PATENT IN SUIT

         The application that matured into the ‘154 patent was filed on August 15, 1990. Dkt. No. 153-1, at 12; Dkt. No. 144 at 5. The '154 patent is directed to an intraluminal and endovascular graft for placement within a blood vessel, duct, or lumen to hold it open. Dkt. No. 148-1, ‘154 Patent, Abstract. The graft is composed of a flexible, tubular member or sleeve with multiple stents mounted on the periphery of the tube. Id. The ‘154 patent issued on June 16, 1992. See Id. Date of Patent.

         The asserted claims of the ‘154 patent read:

1. An intraluminal graft for introduction within a portion of a blood vessel, duct or lumen of a living being, said graft comprising a sleeve and at least two stent means mounted thereon, said sleeve being an elongated member of a generally tubular shape having a longitudinal axis and formed of a first, relatively flexible, material, said material being impervious to the ingrowth of tissue therein, each of said stent means being generally ring-like in shape, [s]aid stent means being mounted about the periphery of a surface of said sleeve at selected points therealong to form (a) respective first sleeve sections, each of said first sleeve sections extending for respective portions of the length of said sleeve and being spaced from each other, said sleeve additionally comprising at least one second section, said second section being interposed between said at least two first sections, each of said stent means being arranged to be expanded from a compact state to an expanded state as said sleeve is so expanded so that the cross-section area of the interior of said sleeve is enlarged, said stent means when in said expanded state being resistant to contraction back to said compact state to thereby hold said sleeve in said compact state to thereby hold said sleeve in said expanded state, said graft being able to bend longitudinally with respect to said axis to enable said graft to be readily accommodated within a curved blood vessel, duct or lumen.
* * *
14. An intraluminal graft for introduction within a portion of a blood vessel, duct or lumen of a living being, said graft comprising a sleeve and stent means mounted thereon, said sleeve being an elongated member of a generally tubular shape having a longitudinal axis and formed of a first, relatively flexible, material, said material being impervious to the ingrowth of tissue therein, said sleeve comprising an outer peripheral surface, said stent means being generally ring-like in shape and mounted on said outer peripheral surface of said sleeve to form a first sleeve section, said stent means being arranged to be expanded from a compact state to an expanded state as said sleeve is so expanded so that the cross-sectional area of the interior of said sleeve is enlarged, said stent means when in said expanded state being resistant to contraction back to said compact state to thereby hold said sleeve in said expanded state, said graft being able to bend longitudinally with respect to said axis to enable said graft to be readily accommodated within a curved blood vessel, duct or lumen.
15. An intraluminal graft for introduction within a portion of a blood vessel, duct or lumen of a living being, said graft comprising a sleeve and stent means mounted thereon, said sleeve being an elongated member of a generally tubular shape having a longitudinal axis, an outer peripheral surface, and being formed of a first, relatively flexible, material, said material being impervious to the ingrowth of tissue therein, said stent means being generally ring-like in shape and mounted on said outer peripheral surface of said sleeve to form a first sleeve section, said first sleeve section extending for only a portion of the length of said sleeve to form a first sleeve section, said first sleeve section extending for only a portion of the length of said sleeve, said sleeve additionally comprising a second sleeve section contiguous with said first sleeve section, said stent means being arranged to be expanded from a compact state to an expanded state as said sleeve is so expanded so that the cross-sectional area of the interior of said sleeve is enlarged, said stent means when in said expanded state being resistant to contraction back to said compact state to thereby hold said sleeve in said expanded state, said first and second sleeve sections being able to bend longitudinally with respect to said axis to enable said graft to be readily accommodated within a curved blood vessel, duct or lumen.

Id. at 3-4 (citing ‘154 Patent, col.9, l.28 to col.10, l.67).

         The parties had agreed on the meaning of two terms in the ‘154 patent, “first sleeve section[s]” and “second sleeve section[s].” Dkt. No. 102, Claim Construction Order, at 10 (“CCO”). The parties disputed two additional claim terms and, on April 10, 2013, the Court issued its Order on the construction of those terms. See, generally, id. The following chart summarizes the terms and the Court's construction:

CLAIM CONSTRUCTION CHART FOR THE ‘154 PATENT

DISPUTED TERM

COURT'S CONSTRUCTION

“stent means”

“a generally ring-like, hollow support that is resistant to contraction back to a compact state once it has been expanded”

“resistant to contraction back”

“able to withstand the force or effect of”

         Notwithstanding the Court's discussion regarding construction for these terms, the parties dispute the scope of the “resistant to contraction back” element. Dkt. No. 153-1 at 26-27; Dkt. No. 174 at 24-26; Dkt. No. 196 at 9-11. In its CCO, the Court explained the scope of this term at length, particularly with respect to its limitation on the stent means:

The plain meaning of the term stent, in combination with this material and/or mechanical requirement [(referring to the “resistant to contraction back” element)], limit the invention to that subset of stents that have the requisite structural properties. Whether those properties are obtained through the choice of material; or the design of the hollow, rink-like part; or a combination of the two, as disclosed in the description of the preferred embodiment; the invention does not preclude the use of a self-expanding stent.

         CCO at 18. In further elaborating on the characteristics of “resistant to contraction back, ” the Court stated that “the stent must be able to withstand or hold off the force trying to close the sleeve once it has been expanded.” Id. at 20. In other words, it must “hold the sleeve in its expanded state.” Id. However, the Court rejected the notion that contraction back is precluded and refused Cook's invitation to import a limitation from the preferred embodiment into the claims. Id. at 21-22.

         In addition to their arguments about the scope of the “resistant to contraction back” element, the parties dispute the meaning of an additional term “impervious to the ingrowth of tissue therein.” Dkt. Nos. 153-1 at 25-26; Dkt. No. 174 at 20-24; Dkt. No. 196 at 8-9.

         C. THE ACCUSED PRODUCTS

         Endotach asserts that four of Cook's products infringe one or both of the Rhodes patents: (1) Zenith Flex AAA Endovascular Graft (“Zenith Flex”); (2) Zenith Renu AAA Ancillary Graft (“Zenith Renu”); (3) Zenith Fenestrated AAA Endovascular Graft (“Zenith Fenestrated”); and (4) Zenith TX2 TAA Endovascular Graft (“Zenith TX2”) (collectively, the “Accused Products”). Dkt. No. 153-1 at 11; Dkt. No. 43 at ¶ 16. The Accused Products are stent grafts made from a combination of materials and one or more self-expanding stents. Dkt. No. 153-1 at 11.

         In practice, a doctor places an accused product into a patient's aorta, the main blood vessel carrying blood away from the heart. Id. The aortic wall consists of three layers: the tunica intima (referred to as the intimal layer); the tunica media (referred to as the medial layer); and the tunica adventitia (referred to as the adventitial layer). Id. The intimal layer, which is the initial or intimal layer inside the vessel, is comprised of an endothelial cell layer, a subendothelial layer, and an internal elastic lamina layer. Id.; Dkt. No. 174 at 12-13.

         The Accused Products have sleeves that are made from a woven Dacron® polyester fabric. Dkt. No. 153-1 at 16. The fabric is porous, which allows for tissue growth into the graft ...


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