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08-10285-NMG Decision

08-10285-NMG Decision

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Published by: barzilay123 on Jun 25, 2012
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Claims against Trimedyne, Inc. and Convergent LaserTechnologies were settled in the Fall of 2010 through alternativedispute resolution. Claims against the remaining defendants,with the exception of Cardiogenesis, were voluntarily dismissed.-1-
United States District CourtDistrict of Massachusetts________________________________CARDIOFOCUS, INC.,Plaintiff,v.CARDIOGENESIS CORPORATION,Defendant.________________________________))))) Civil No.) 08-10285-NMG)))MEMORANDUM & ORDERGORTON, J.
This is a patent infringement action involving laser cathetersystems. Plaintiff CardioFocus, Inc. (“CardioFocus”) alleges thatdefendant Cardiogenesis Corporation (“Cardiogenesis”)manufactured, used, imported, sold, and offered for sale lasersthat infringed at least one of its two patents-at-issue: U.S.Patent Nos. 5,843,073 (“the ’073 patent”) and 6,547,780 (“the’780 patent”). Cardiogenesis is the only remaining defendant.
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I. Background
The ‘780 and ‘073 patents describe a system for transmittinglaser energy via an optical fiber for the purposes of tissueremoval and repair. The invention is based, in part, on the
 
-2-discoveries that 1) the wavelengths of infrared radiation emittedby so-called “rare earth” lasers, or lasers with a wavelengthbetween 1.4 and 2.2 micrometers, are strongly absorbed inbiological tissue and 2) silica fibers with a low hydroxyl-ioncontent have the flexibility and high conductivity that enablesthe transmission of such wavelengths to remote surgical sites tofacilitate removal or repair of biological tissue.CardioFocus argues that Cardiogenesis’ products, the TMR2000, Solargen 2100 and New Star PMC lasers and laser systems,infringe Claims 2 and 7 of the ‘073 patent and Claim 2 of the‘780 patent. Cardiogenesis denies CardioFocus’ allegations andbrings counterclaims for declaratory judgment of non-infringementand patent invalidity.The case has been stayed twice, from October, 2008, to April, 2010, and from March, 2011, to August, 2011, pendingpatent re-examination proceedings before the United States Patentand Trademark Office (“PTO”). With respect to the ’780 patent,the PTO found a substantial new question of patentability basedon prior art patents and printed publications that expresslyteach and recognize a laser surgical system which uses 1) lasersemitting energy at a wavelength in a range of about 0.2-3.0micrometers and 2) silica fiber having a low hydroxyl-ion contentas a means for reducing absorption of the laser energy duringtransmission of the laser through the fiber. The PTO ultimatelyconfirmed the patentability of three claims of the ‘780 patent
 
-3-and rejected the remaining eleven. In response, CardioFocuschose not to pursue the rejected claims and statutorilydisclaimed them. With respect to the ’073 patent, the PTOconfirmed the patentability of five of the claims and CardioFocusstatutorily disclaimed the remaining eight.The Court held a Markman hearing on October 21, 2011, and,on November 3, 2011, issued a Memorandum and Order construing thedisputed claim terms (“Markman Order”) which defendant has movedthis Court to reconsider. Shortly thereafter, the parties filedcross-motions for summary judgment. Defendant has since moved tostrike plaintiff’s reply briefs on the grounds that they areuntimely. Those motions are pending before the Court.
II. Motions for Summary JudgmentA. Standard
The role of summary judgment is “to pierce the pleadings andto assess the proof in order to see whether there is a genuineneed for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822(1st Cir. 1991). The burden is on the moving party to show,through the pleadings, discovery and affidavits, “that there isno genuine issue as to any material fact and that the movingparty is entitled to judgment as a matter of law.” Fed. R. Civ.P. 56(c). A fact is material if it “might affect the outcome of thesuit under the governing law.” Anderson v. Liberty Lobby, Inc.,

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