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University of Pittsburgh of the Commonwealth System of Higher v. Varian Medical Systems

May 16, 2011

UNIVERSITY OF PITTSBURGH OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION,
PLAINTIFF,
v.
VARIAN MEDICAL SYSTEMS, INC.,
DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION RE: SPECIAL MASTER'S REPORT AND RECOMMENDATION (DOC. NO. 283); PLAINTIFF'S MOTION TO ADOPT-IN- PART AND MODIFY-IN-PART THE SPECIAL MASTER'S REPORT AND RECOMMENDATION (DOC. NO. 284); AND DEFENDANT'S MOTION TO MODIFY IN PART THE SPECIAL MASTER'S REPORT AND RECOMMENDATION (DOC. NO. 285)

I.Introduction

In this action, Plaintiff University of Pittsburgh ("Pitt") accuses Defendant Varian Medical Systems ("Varian") of infringing U.S. Patent No. 5,727,554 ("the "554 patent"). The Court appointed a Special Master, former United States District Court Judge Donald E. Ziegler, to oversee the claims construction process in this litigation on June 18, 2010. Doc. No. 182. Following briefing, a Markman hearing was held on December 17, 2010. On April 6, 2011, the Special Master issued a Report and Recommendation ("R & R") on disputed claim terms of the "554 patent. Doc. No. 283.

Pitt has moved the Court to modify the conclusion of the Special Master with regard to a disputed term in Claim 30, to clarify the construction of a word in Claim 20, and to adopt the rest of the R & R. Doc. No. 284. Varian moves the Court to adopt the R & R‟s construction of seven disputed terms and to modify or clarify the Special Master‟s recommended construction of all other disputed terms. Doc. No. 285. Varian focuses its attention on three particular terms: it asks the Court to modify the recommended construction of the "means determining movement" and "camera means" terms of Claim 20, and it asks the Court to clarify the construction of the "digital image signals representing an image of said patient" term of Claim 20. Id. After extensive briefing from both parties and careful consideration of the applicable legal principles, the Court will rule as follows.

II. Legal Standard

In patent infringement litigation, courts construe patents as a matter of law. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 377-90 (1996). "It is a "bedrock principle‟ of patent law that "the claims of a patent define the invention to which the patentee is entitled the right to exclude.‟" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2005)).

The United States Court of Appeals for the Federal Circuit in Phillips provides United States District Courts with extensive instructions on how to conduct claim construction analysis:

A court construing a patent claim seeks to [afford] a claim the [ordinary and customary] meaning it would have to a person of ordinary skill in the art at the time of the invention . . . .

In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction . . . involves little more than the application of the widely accepted meaning of commonly understood words . . . .

In many cases . . . determining the ordinary and customary meaning of the claim requires examination of terms that have a particular meaning in a field of art. Because the meaning . . . as understood by persons of skill in the art is often not immediately apparent, and because patentees frequently use terms idiosyncratically, the court looks to those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean . . . . Those sources include the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art . . . .

Within the class of extrinsic evidence, the court has observed that dictionaries and treatises can be useful in claim construction.. We have especially noted the help . . . technical dictionaries may provide to a court to better understand the underlying technology and the way in which one of skill in the art might use the claim terms . . . . Because dictionaries, and especially technical dictionaries, endeavor to collect the accepted meanings of terms used in various fields of science and technology, those resources have been properly recognized as among the many tools that can assist the court in determining the meaning of particular terminology to those of skill in the art . . . . Such evidence, we have held, may be considered if the court deems it helpful in determining the true meaning of [the] language used . . . .

Phillips, 415 F.3d at 1303, 1313-14, 1318 (Fed. Cir. 2005) (citations and internal quotations omitted).

III. Discussion

A.Varian's Objections to the Report and Recommendation

a.Objection to the Recommended Construction of "Means Determining Movement" in Claim 20 Varian objects to the Special Master‟s interpretation of "means determining movement" contending that the interpretation describes the algorithm too broadly and misapplies Federal Circuit law in the process. Specifically, Varian contends that the recommended construction "would not require the "robust‟ software described by the patent, with the result that the claim would arguably cover systems that have no ability to track natural fiducials." Doc. No. 285, 6.*fn1

It is not disputed that "means determining movement" is a means-plus-function term whose corresponding structure is an algorithm. A two-step claim construction process applies to means-plus-function elements. First, the claimed function must be identified and then the corresponding structure described in the specification for performing the function must be identified. See e.g., Med. Instrumentation and Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1210 (Fed. Cir. 2003); Cardiac Pacemakers, Inc. v. St. Jude Med. Inc., 296 F.3d 1106, 1113 (Fed. Cir. 2002). Here, the Special Master identified the function as "determining movement of said patient from the digital image signals of the patient, including ...


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