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Visicu, Inc. v. iMDsoft

May 7, 2009

VISICU, INC., PLAINTIFF,
v.
IMDSOFT, LTD. ET AL., DEFENDANTS.



The opinion of the court was delivered by: Goldberg, J.

MEMORANDUM & ORDER

I. Introduction

This matter involves a patent claim construction pursuant to Markman v. Westview, Inc., 517 U.S. 370, 388-91 (1996). The invention at issue is a computerized monitoring system of intensive care unit ("ICU") patients.

Plaintiff, VISICU, Inc. ("VISICU"), commenced this action for patent infringement against defendants iMDsoft, Ltd. ("iMDsoft") and Lehigh Valley Hospital ("LVH") on October 30, 2007, alleging that LVH uses and promotes a computer program for remote monitoring of ICU patients that infringes upon two existing VISICU patents, U.S. Patent Nos. 6,804,656 ("the '656 patent") and 7,256,708 ("the '708 patent") (collectively, "the patents-in-suit".) VISICU also accuses iMDsoft of contributory infringement of the patents for offering to sell and selling the computer program.

IMDsoft responded through an answer and counterclaims, filed on December 10, 2007, asserting that its inventors shared confidential information with VISICU's inventors that contributed to VISICU's origination and development of its claimed inventions. LVH also filed a counterclaim on December 21, 2007, seeking declaratory judgments regarding the patents-in-suit.

On November 18, 2008, the parties submitted their proposed claim constructions and respective briefs. A Markman hearing followed on February 12 and 13, 2009, wherein, by agreement, no witnesses were called and counsel set forth their respective arguments.

II. The Patents

The '656 and '708 patents cover systems and methods for the centralized management of care of patients in ICUs. VISICU explains that intensive care doctors, known as intensivists, are in short supply across the United States and internationally. Thus, the essence of VISICU's invention is to connect intensivists, through centralized monitoring, with greater numbers of ICU patients, in order to provide improved care. The systems and methods for doing so involve a computer system that monitors multiple types of patient information, reviews developments in that patient information according to established rules, and notifies medical staff at a remote command center when a rule is triggered, indicating that intervention in a patient's care may be necessary.

The '656 patent, entitled "SYSTEM AND METHOD FOR PROVIDING CONTINUOUS, EXPERT NETWORK CRITICAL CARE SERVICES FROM A REMOTE LOCATION(S)," was issued to VISICU, as the assignee of inventors Brian A. Rosenfeld and Michael Breslow, on October 12, 2004. The patent was challenged twice by iMDsoft based on newly presented prior art references, andthe Patent Trademark Office ("PTO") twice reexamined the patent. The PTO issued a first ex parte reexamination certificate on or about September 26, 2006 and a second ex parte certificate on October 30, 2007. The '708 patent, entitled "TELECOMMUNICATIONS NETWORK FOR REMOTE PATIENT MONITORING" was issued to VISICU on August 14, 2007.

The two patents are similar and cover the same inventions. The majority of the disputed claim terms are found in independent method claim 17 of the '656 patent and independent system claim 1 of the '708 patent. As these sections of the patent are extensively referred to herein, they are set forth verbatim below.

Claim 17 of the '656 patent reads:

17. A method for providing expert critical care simultaneously to a plurality of geographically dispersed intensive care units (ICUs) from a remote location comprising: monitoring patient data elements of patients in a plurality of geographically dispersed ICUs; communicating over a network the monitored patient data elements to a remote command center, the remote command center comprising a database and a workstation; storing the monitored patient data elements in the database, wherein the database comprises stored patient data elements; applying a rules engine continuously to at least two patient data elements stored in the database to search for patterns of data indicative of a medical condition of a patient; utilizing an output from the rules engine to determine if intervention is warranted; and wherein the monitoring and determining if intervention is warranted for individual patients occurs in an automated fashion at the remote command center 24 hours per day 7 days per week.

Claim 1 of the '708 patent reads:

1. A hospitalized patient care system comprising: a telecommunication network; monitoring stations comprising monitoring equipment adapted to monitor data elements from geographically dispersed hospitalized patients and to send the monitored data elements to a remote command center via the telecommunications network, wherein the remote command center is adapted to: receive the monitored data elements from the geographically dispersed hospitalized patients; access patient data elements indicative of a medical condition associated with each of the geographically dispersed hospitalized patients; and establish patient-specific rules associated with each of the geographically dispersed hospitalized patients; and apply the patient-specific rules continuously and simultaneously using a rules engine adapted to: select data elements from the monitored data elements and the patient data elements associated with a hospitalized patient; apply a patient-specific rule associated with the hospitalized patient to the selected data elements; determine in an automated fashion at the remote command center whether the patient-specific rule for the hospitalized patient has been contravened; and in the event the patient-specific rule for the hospitalized patient has been contravened, issue an alert from the remote command center.

At the commencement of the Markman hearing, 17 claims remained in dispute.*fn1 Many of the disputes overlap in the two patents. The few distinguishing characteristics between the two patents include what will be referenced to as the '656 patent's "wherein" clause, requiring automated 24/7 "monitoring and determining," and the '708 patent's "patient-specific rules" language.

III. Applicable Precedent

Patent infringement cases typically involve a two-part analysis. The first step, known as the "claim construction" involves a determination of the meaning and scope of any disputed claims. Because a patent is a written instrument, judges, not juries, must interpret the words of the patent's claims. Markman, 517 U.S. at 388-89. In short, claim construction is a matter of law to be determined by the court.

The claims analysis begins and remains focused on the language of the claims themselves because that is what the inventor used to describe his invention. Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001) (citing 35 U.S.C. § 112, ¶ 2); Sipco LLC v. Toro Co., slip op. at 1 (E.D. Pa. Feb 11, 2009). "Ultimately, the interpretation to be given a term can only be determined and confirmed with a full understanding of what the inventors actually invented and intended to envelopwith the claim. The construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005), cert. denied, 546 U.S. 1170 (2006) (citations omitted).

Claim language is generally given its "ordinary and customary meaning." Patents are "addressed to and intended to be read by" those skilled in the field of the invention. Phillips, 415 F.3d at 1313. Thus a term's "ordinary and customary meaning" is what it would be to a "person of ordinary skill in the art in question at the time of the invention." Id. (citing Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)); see also Elbex Video, Ltd. v. Sensormatic Elecs. Corp., 508 F.3d 1366, 1371 (Fed. Cir. 2007) ("claim terms are entitled to a 'heavy presumption' that they carry their ordinary and customary meaning to those skilled in the art in light of the claim term's usage in the patent specification").

The context in which a term is used in the claim can also be "highly instructive." Phillips, 415 F.3d at 1314.The words surrounding a disputed term may help suggest whether a proposed construction is redundant or incorrect. Additionally, the use of a term in other claims of the patent is informative because terms are normally used consistently throughout the patent. Id.; Sipco LLC, at 2.

More specifically, a Court should consider four main sources in analyzing a claim: (1) the words of the claims themselves, (2) the specification,*fn2 (3) the prosecution history, and, if necessary, (4) "extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art." Phillips, 415 F.3d at 1314. The first three sources, collectively, are referenced to as intrinsic evidence, and the court's interpretation begins with these sources. Id.

The Federal Circuit has emphasized the importance of the specification in claim construction. Id. at 1315. "[C]laims must be read in view of the specification, of which they are a part." Markman, 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). The specification's written description of the invention "must be clear and complete enough to enable those of ordinary skill in the art to make and use it." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d1576, 1582 (Fed. Cir. 1996).Indeed, the specification is the "single best guide to the meaning of a disputed term." Phillips, 415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582).

"Although the prosecution history often lacks the clarity of the specification and thus is less useful for claim construction purposes...the prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be." Phillips, 415 F.3d at 1317. Accordingly, the court examines "the patent's prosecution history, when placed in evidence, to determine whether the inventor disclaimed a particular interpretation of a claim term during the prosecution of the patent." Ventana Medical Systems, Inc. v. Biogenex Labs, 473 F.3d 1173, 1182 (Fed. Cir. 2006). Where the patentee has unequivocally disavowed a certain meaning to obtain his patent, the doctrine of prosecution disclaimer prevents it from later expanding the scope of the invention. 800 Adept, Inc. v. Murex Secs., Ltd., 539 F.3d 1354, 1364 (Fed. Cir. 2008) (citing Omega Eng'g v. Raytek Corp., 334 F.3d 1314,1324-25 (Fed. Cir. 2003)).

Conversely, the disclaimer doctrine is not applied where the alleged disavowal of claim scope is ambiguous or vague. Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1347 (Fed. Cir. 2001) (refusing to limit the ordinary meaning of the claim because the alleged disclaimer in the file wrapper was at best "inconclusive"); N. Telecom Ltd. v. Samsung Electrs. Co., Ltd., 215 F.3d 1281, 1295 (Fed. Cir. 2000) (where the inventors' statements were amenable to multiple reasonable interpretations, court deemed the remarks too ambiguous to apply doctrine). In sum, for prosecution disclaimer to attach, the alleged disavowing actions or statements made during prosecution must be clear and unmistakable, as well as demonstrate reasonable deliberateness. Omega Eng'g, 334 F.3d at 1326; N. Telecom, 215 F.3d at 1294-95.

In addition, "extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art," may be consulted. Phillips, 415 F.3d at 1314. However, because the universe of extrinsic evidence is boundless and such evidence is not created at the time of the patent or for the purpose of explaining the patent's scope, it is considered less reliable than intrinsic evidence. Id. at 1318-19. Therefore, extrinsic evidence should be used only when intrinsic evidence is insufficient to resolve claim interpretation disputes.

Lastly, as a general rule, the patent language must not be rewritten even when it may be clearer if done so. Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1383 (Fed. Cir. 2008). An attempt to clarify could mistakenly add or subtract requirements. If the inventor or his attorney could not get it right, it is not for a court to correct. SeeK-2 Corp.v. Salomon S.A., 191 F.3d 1356, 1364-65 (Fed. Cir. 1999). Nor can language be engrafted onto existing language to accommodate the dispute solely for the purpose of aiding jury comprehension. 800Adept, Inc., 539 F.3d at 1366-67 (trial court erred when, in an effort to help the jury better understand a claim, added a sentence to its original claim construction, and the modified construction was incorrect).

In other words, courts should avoid the temptation to write claim language in what appears to be a better way. Adherence to the original meaning of the patentee whenever possible is the paramount principle. Texas Instruments, Inc. v. U.S. Int'l Trade Comm'n, 988 F.2d 1165, 1171 (Fed. Cir. 1993) ("Courts can neither broaden nor narrow the claims to give the patentee something different than what he has set forth"); Sipco LLC, at 3-4.

IV. Claim Construction

A. Defendants' Proposed 24/7 Limitation

The parties have organized their proposed claim constructions for the 17 disputed claims into 11 categories. (See Chamberlain Decl., Ex. 1, Joint Claim Construction Chart.) Generally, plaintiffs argue the disputed claim language should be construed according to the language and context of the claims and specifications, and that in most instances, the prosecution history is both unnecessary and unhelpful in determining the meaning of the disputed claims. Defendants argue that the prosecution history mandates that several limitations be added into individual claim constructions. Defendants also propose that a temporal limitation be applied pervasively to the disputed claims. As defendants propose this addition to the majority of disputed constructions, we will discuss defendants' suggested temporal limitation first, before addressing the remaining proposed claim constructions.

Defendants seek to add the phrase, "24 hours a day seven days a week," to numerous constructions. However, the 24/7 limitation appears only once in the '656 patent claims as a component of the last line of claim 17 in the ...


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