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B. BRAUN MED. INC. v. ABBOTT LABS.

June 29, 1995

B. BRAUN MEDICAL INC., Plaintiff
v.
ABBOTT LABORATORIES and NP MEDICAL, INC., Defendants



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 JUNE 29, 1995

 I. BACKGROUND

 II. DISCUSSION

 A. Claim Interpretation

 Braun claimed, inter alia, that Defendants' NP LAV infringed element 5 of claim one of the 916 patent which requires "means with the other body element for holding said disc firmly against said first means in such a manner that said disc is restrained from sideways movement." Abbott and NP defended on the ground that, properly interpreted, the 916 patent claimed only a traverse bar for performing this function. The traverse bar is indisputably absent in the NP LAV. Braun responded that the traverse bar structure was only specifically required by dependent claim ten of 916 patent and that the function performed by the means claimed in element 5 was performed by the valve seat and plunger in either valve. See B. Braun Medical, Inc. v. Abbott Laboratories and NP Medical, Inc., C.A. No. 93-3883 (E.D.Pa. Aug. 29, 1994)(denying Defendants' motion for summary judgment on the issue of infringement).

 Special Interrogatory Number One required the jury to determine whether "the traverse bar is the only means claimed by claim one of the 916 patent to perform the limitation described in element 5 of claim one . . . or . . . [whether] the means claimed . . . includes the valve seat and plunger as well as the traverse bar?" Plaintiff contends the Court erred in submitting this interrogatory to the jury because it concerns claim interpretation which is a question of law solely for the Court.

 The Federal Circuit has developed a two part test for determining infringement of means and function limitations. The accused device must: (1) incorporate the means for performing the function described in the specification or a substantial structural equivalent of that means, and (2) perform the identical function required by the limitation. Id. (citing Johnston v. IVAC corp., 885 F.2d 1574, 1580 (Fed. Cir. 1989); Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388-89 (Fed. Cir. 1992)). Regarding interpretation of means plus function claims, the Federal Circuit has stated:

 
To interpret means plus function limitations as limited to a particular means set forth in the specification would be to nullify the provision of § 112 requiring that the limitation shall be construed to cover the structure described in the specification and equivalents thereof. In construing a means plus function claim, as also other types of claims, a number of factors may be considered, including the language of the claim, the patent specification, the prosecution history of the patent, other claims in the patent, and expert testimony. Once such factors are weighed, the scope of the means claim may be determined. Here, appellants have contended . . . that the independent means claims of the [916] patent must be construed to cover a § 112 equivalent, and that the [valve seat and plunger] [is] such a § 112 equivalent. Whether that accused device is a § 112 equivalent of the described embodiment is a question of fact.

 P.M. Palumbo v. Don-Joy Co., 762 F.2d 969, 974 (Fed. Cir. 1985)(citations and internal quotations omitted). By claiming that either the traverse bar or the valve seat and plunger could perform the identical function required by element 5 of claim one, Plaintiff created a factual issue which was dispositive of the questions of interpretation and infringement of element 5. "The determination of the scope of the claim - its interpretation and proper construction - while denominated a question of law is in many cases based on the facts . . . ." Lemelson v. General Mills, Inc., 968 F.2d 1202, 1207 (Fed. Cir. 1992), cert. denied, 113 S. Ct. 976 (1993). Underlying factual disputes regarding claim interpretation "become the jury's province to resolve in the course of rendering its verdict on infringement." Id. Accordingly, special interrogatory one was properly submitted to the jury.

 Braun argues, in addition, that the Court erred in instructing the jury on the issue of claim interpretation by refusing some of Braun's requested instructions. To overturn the verdict on the grounds of improper jury instructions, Braun must prove "(1) that the jury instructions, when read in their entirety, were incorrect, and (2) that [Braun's] alternative instructions could have cured the error." Goodwall Const. Co. v. Beers Const. Co., 991 F.2d 751, 755 (Fed. Cir. 1993). Braun's only suggestion of error is that the jury "was not made aware of the applicable Federal Circuit authority." Pl.'s Mem. at 3. The Court disagrees and believes that the charge, as a whole, clearly and adequately instructed the jury ...


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