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Manders v. McGhan Medical Corp.

August 15, 2006

ERNEST K. MANDERS, M.D., PLAINTIFF,
v.
MCGHAN MEDICAL CORPORATION AND INAMED MEDICAL PRODUCTS CORPORATION DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM ORDER

United States Patent No. 4,575,780 ("the '780 patent"), entitled "Tissue Expander and Method," includes claims directed to a medical device that expands soft tissue and to methods for differentially expanding soft tissue. Defendants McGhan Medical Corp. and Inamed Medical Products Corp. ("defendants") filed a Motion for Reconsideration of the Claim Construction Order Entered on February 23, 2006. Ernest Manders ("plaintiff") filed an opposition to that motion, and defendants filed a reply to plaintiff's opposition.

In the Memorandum Opinion of this court dated February 23, 2006, the court construed a number of terms whose construction is disputed by the parties. In their Motion for Reconsideration, defendants object to three of the court's constructions. Defendants essentially attempt to relitigate issues they previously raised in the above-captioned action, and the court will deny defendants' motion.

Standard of Review

An opinion issuing from a Markman hearing is an interlocutory decision, rather than a final judgment or order. Bausch & Lomb, Inc. v. Moria S.A., 222 F. Supp. 2d 616, 669 (E.D. Pa. 2002). Because of the interlocutory nature of claim construction, courts have different views of the effects of a claim construction decision. One view is that a district court has discretion to review and amend the claim construction at any time prior to final adjudication, and may even do so sua sponte. Bateman v. Por-Ta Target, Inc., Civ. No. 01-5599, 2004 U.S. Dist. LEXIS 28487, at *13 (N.D. Cal., July 28, 2004) (citing Sofamor Danek Group, Inc. v. DePuy-Motech, Inc., 74 F.3d 1216, 1221 (Fed. Cir. 1996)); see Jack Guttman, Inc. v. KopyKake Enters., Inc., 302 F.3d 1352, 1361 (Fed. Cir. 2002) ("District courts may engage in a rolling claim construction, in which the court revisits and alters its interpretation of the claim terms as its understanding of the technology evolves.") Other courts, however, view Markman hearings as having a "special finality," which would argue against an amendment at will. See TM Patents, LP v. IBM Corp., 72 F. Supp. 2d 370, 378n.2 (S.D.N.Y. 1999).

These differences in opinion may be due, in part, to the fact that district courts have wide latitude in how they conduct claim construction proceedings. See Ballard Med. Prods. v. Allegiance Healthcare Corp., 268 F.3d 1352, 1358 (Fed. Cir. 2001). These proceedings "run the gamut from mid-trial sidebar conferences . . . to virtual mini-trials extending over several days and generating extensive evidentiary records." MediaCom Corp. v. Rates Tech., Inc., 4 F. Supp. 2d 17, 21 (D. Mass. 1998).

District courts have held that while they may reconsider claim construction orders "when it is consonant with justice to do so," a court "should grant motions for reconsideration sparingly." Bausch & Lomb, 222 F. Supp. 2d at 669. Other courts have gone so far as to treat a motion for reconsideration of a Markman ruling as stringently as they would treat a motion for reconsideration of a final judgment or order, ruling that such motions will be granted only upon: (1) an intervening change in controlling law; (2) the emergence of new evidence not previously available; or (3) the need to correct a clear error of law or to prevent a manifest injustice. See Agere Systems, Inc. v. Broadcom Corp., Civ. No. 03-3138, 2004 U.S. Dist. LEXIS 17811, at *3 (E.D. Pa., Sept. 7, 2004); AstraZeneca AB v. Mut. Pharm. Co., Civ. No. 00-4731, 2002 U.S. Dist. LEXIS 20311, at *4 (E.D. Pa., Oct. 3, 2002), rev'd and remanded on other grounds, 384 F.3d 1333 (Fed. Cir. 2004); General Instrument Corp. v. Nu-Tek Elecs. & Mfg., 3 F. Supp. 2d 602, 606 (E.D. Pa. 1998), aff'd, 197 F.3d 83 (3d Cir. 1999).

In this case, the parties, having disagreed on the interpretation of numerous claim terms, filed lengthy opening briefs in which they advocated a particular construction of those terms. The parties then filed briefs in response, in which they further developed their arguments. Finally, the court held a formal Markman hearing, with three days of testimony (September 23rd, October 7th, and October 18th, 2004) that produced 383 pages of transcripts. (Doc. Nos. 132, 133, 134.) The record included testimony from plaintiff and owner of the '780 patent, Dr. Manders (Doc. No. 132), as well as from Dr. Fisher, an expert in plastic surgery and breast reconstruction (Doc. No. 133).

Where there is, as here, an extensive record with a procedure embodying the formality for the claim construction proceedings, it is appropriate to view the standard of review to be used in considering a motion for reconsideration in a stricter manner in consideration of the interests of judicial economy. Having devoted several days to hearings and after reviewing an extensive record, the court issued its opinion on claim construction. This court will, therefore, examine the motion in light of the record and traditional standards of review for motions for reconsideration. See Anthony M. Garza, Collateral Estoppel and Claim Construction Orders: Finality Problems and Vacatur Solutions, 6 Colum. Sci. & Tech. L. Rev. 4 (2005) (discussing the collateral estoppel effect of claim construction orders, and suggesting that the granting or denial of such collateral estoppel effect depends, in large part, on the level of formality of the earlier Markman hearings).*fn1

Discussion

The court construed nine terms or phrases contained in claim 24 of the '780 patent, ten terms or phrases contained in claim 31, and also construed claims 25, 32, 33, 34, 35, 37, 39, 40, 44, and 46.

I. "Whereby" Clause of Claim 31

The final clause of claim 31 has been referred to as the "whereby" clause.*fn2 As noted above, both sides had an opportunity to brief extensively their respective positions on how to interpret this clause. The parties also devoted significant time to this clause at the Markman hearing. (Doc. No. 132, 184:24-185:22); (Doc. No. 134, 13:17-18:19, 27:3-28:7, 36:4-11, 57:8-66:3).

Defendants argued that the word "only" in the "whereby" clause should apply to the second cover portion (and the tissue overlying that second cover portion), so that, after reaching the taut position, only the second cover portion could expand further, and not the first cover portion. Plaintiff argued that the clause meant that, after reaching the taut position, both the first and second cover portions ...


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