Patent Claim Construction

February 16, 2012

Southern District Allows CleanTech to Amend Complaint to Add Patent to Ethanol Patent Litigation

Indianapolis, IN –Senior Judge Larry J. McKinney of the Southern District of Indiana has allowed an additional patent to be added to a complex patent infringement suit over Ethanol byproducts. The plaintiff in this case, GS CleanTech Corporation of New York, New York had requested to amend its complaint to add infringement claim regarding patent no. 8,008,516, which has been issued by the US Patent Office, to the lawsuit. As orgininally filed, CleanTech had filed a patent infringement lawsuit alleging that twenty-two defendants had infringed patent no. 7,601,858, Method of processing ethanol byproducts and related subsystemsTITLE.

The court describes the ‘516 patent as a continuation of the ‘858 patent and directed to the same technology. The ‘516 patent was issued by the US Patent Office on August 30, 2011. Court found that Cleantech’s motion to amend did not involve undue delay, bad faith or a dilatory motive. The court found that adding the ‘516 patent “serves the goal of furthering the efficient adjudication of the case because the ‘516 and ‘858 patents are directed to similar technology and involve similar claim terms.” Three defendants objected to the amendment of the complaint, however, the court did not find any of the objections sufficient to prevent the amendment of the complaint.

As we blogged in October 2011, Judge McKinney has already held a Markman hearing: Indiana Court issues Markman Ruling in GS Cleantech v. Big River for Ethanol Processing Patents.

Practice Tip: The litigation over the ‘858 patent has been pending for several years and involves many parties. This is a very complex case from a procedural standpoint. While the Markman ruling has already been issued, the court’s order pointed out that the discovery process has not been started.
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February 13, 2012

Southern District Denies Stryker Corporation’s Motion to Add Additional Counterclaims in Patent Infringement Case against Hill-Rom Services

By Overhauser Law Offices, LLC

Indianapolis, IN – Magistrate Judge Denise K. LaRue of the Southern District of Indiana has denied Stryker Corporation’s Motion for Leave to Amend Its Counterclaims, which sought permission to add three more patent infringement counterclaims referencing three additional patents.

In April 2011, patent attorneys for Hill-Rom Services, Inc. of Batesville, Indiana, filed a patent infringement lawsuit in the Southern District of Indiana alleging that Stryker Corporation of Kalamazoo, Michigan had infringed twelve of its patents: Patent No. 6,993,799, HOSPITAL BED; Patent No. 7,644,458, HOSPITAL BED; Patent No. 6,588,523, STRETCHER HAVING A MOTORIZED WHEEL; Patent No. 6,902,019, STRETCHER HAVING A MOTORIZED WHEEL; Patent No. 7,011,172, PATIENT SUPPORT APPARATUS HAVING A MOTORIZED WHEEL; Patent No. 7,284,626, PATENT SUPPORT APPARATUS WITH POWERED WHEEL; Patent No. 7,090,041, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 7,273,115, CONTROL APPARATUS FOR A PATIENT SUPPORT; Patent No. 7,407,024, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 7,828,092, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 6,772,850, POWER ASSISTED WHEELED CARRIAGE; and Patent No. 6,752,224, WHEELED CARRIAGE HAVING A POWERED AUXILIARY WHEEL, AUXILIARY WHEEL OVERTRAVEL, AND AN AUXILIARY WHEEL DRIVE AND CONTROL SYSTEM.

Stryker had counterclaimed with thirteen claims of patent infringement against Hill-Rom. In late October 2011, Stryker filed a motion seeking to add three more infringement claims regarding Patent No. 6,264,006, Brake for castered wheels, Patent No. 7,124,456, Articulated support surface for a stretcher or gurney and Patent No. 7,395,564, Articulated support surface for a stretcher or gurney.

In its decision today, the court noted that the three proposed patent infringement claims would involve significant facts and issues, such as claim-definition, claim-application, infringement and validity; that would be wholly separate and distinct from the present claims. The court stated that “The new technologies and new product hitched to the new claims will needlessly complicate and/or prolong the Court’s and the jury’s tasks.”

Practice Tip: The court’s opinion notes that Stryker stated a plan to file an additional lawsuit that would separately make these new patent infringement claims against Hill-Rom if the court denied its motion to add counterclaims to the present lawsuit. The court noted a new suit was a “ready alternative” for Stryker.
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December 17, 2011

Organic Seed Growers Bring Innovative Patent Challenge Against Monsanto

By Overhauser Law Offices, LLC

New York, NY – Earlier this year, patent attorneys for a group of 60 organizations and farmers, including the Organic Seed Growers and Trade Association, filed a patent lawsuit in the Southern District of New York against agriculture giant Monsanto Company of St. Louis, Missouri. The plaintiffs are farmers who do not want their organic seeds contaminated by the transgentic or genetically modified seeds that are produced and patented by Monsanto. The feared contamination occurs when organic seeds come into contact with genetic material from transgentic seeds through natural pollination processes, such as the wind blowing transgentic pollen to a organic farm nearby . The plaintiffs allege that, given Monsanto’s reputation for vigorously defending its patents, they have brought “this action to protect themselves from ever being accused of infringing patents on transgenic seed.” Their complaint begins: “Society stands on the precipice of forever being bound to transgenic agriculture and transgenic food. Coexistence between transgenic seed and organic seed is impossible because transgenic seed contaminates and eventually overcomes organic seed. ” The organic farmers seek a declaratory judgment that all of Monsanto’s transgentic seed patents are invalid as injurious to public health and for numerous other reasons.

Monsanto has filed a motion to dismiss arguing that the plaintiffs have not demonstrated a justiciable case or controversy and therefore the court does not have subject matter jurisdiction. Monsanto also states that it has issued a public statement declaring that its patent attorneys will not file patent infringement lawsuits against farmers who’s crops are inadvertently contaminated by its patented seeds. Monsanto is being represented by former U.S. Solicitor General Seth Waxman.

Briefing on the motion to dismiss was completed in late August so a decision could be expected at any time. An amicus curiae brief in support of plaintiffs has also been filed.

Practice Tip: Monsanto is an aggressive litigant in defending its intellectual property rights and has sued numerous Indiana farmers. Monsanto recently won the appeal of the Southern District of Indiana‘s decision against an Indiana farmer in patent infringement lawsuit, which Indiana Intellectual Property Law and News blogged about here: US Court of Appeals for the Federal Circuit Affirms the Southern District Court of Indiana’s Decision Holding Indiana Farmer Infringed Soybean Seed Patents.
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December 12, 2011

Federal Circuit Court of Appeals Affirms that It May Hear Legal Malpractice Claims Involving Patent Issue

By Overhauser Law Offices, LLC

Washington, DC – A recent decision in the Federal Circuit Court of Appeals in a legal malpractice claim involving a patent issue may have an impact on a recently filed Indiana case alleging patent attorneys committed legal malpractice, which was filed by Purdue Research Foundation late last month.

In Byrne v. Wood, Herron & Evans LLP, the Federal Circuit Court of Appeals vacated a summary judgment in favor of the law firm Wood, Herron & Evans, and remanded to the lower court for further proceedings. The plaintiff sued the law firm for legal malpractice for failing to secure a patent that was broad enough to secure his invention of a grass and weed trimmer. The plaintiff claimed that due to the law firm’s failure, he later lost a patent infringement lawsuit against Black & Decker. The court below granted summary judgment for the law firm, based in part on its decision that Mr. Byre was not an expert witness.

The appellate court also briefly took on the question of whether the federal courts have jurisdiction to hear legal malpractice claims, typically arising out of state law, when a patent issue is intertwined. The Court, citing Davis v. Brouse McDowell, L.P.A., 596 F.3d 1355 (Fed. Cir. 2010), confirmed that it did have jurisdiction over this case. However, the court acknowledged that other courts had disagreed.

The opinion is designated “non-precedential.” This was an appeal from the Eastern District of Kentucky.

Practice Tip: The basis of the legal malpractice claims in the Purdue case are substantially different that here, however, this case confirms that in most situations involving a patent issue is appropriate for the federal courts to hear legal malpractice cases.
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October 7, 2011

Indiana Court issues Markman Ruling in GS Cleantech v. Big River for Ethanol Processing Patents.

By Overhauser Law Offices, LLC

Indianapolis, IN – Senior Judge Larry J. McKinney of the Southern District of Indiana has issued a claim construction order in a patent infringement lawsuit. Patent attorneys for GS Cleantech Corporation of New York, New York, filed a patent infringement suit regarding patent no. 7,601,858, Method of processing ethanol byproducts and related subsystems which has been issued by the US Patent Office.

The ‘858 patent is directed to “a method of processing a concentrated byproduct of a dry milling process for producing ethanol. In its most basic form, the method comprises of recovering oil from the concentrated byproduct.” Id. col.2 l.18-22. The specification of the patent repeatedly refers to the invention as a two-step process comprised of a concentration step and a recovery step. Plaintiffs accuse Defendants’ methods of infringing “The Concentrate Terms” of the ‘858 patent.

In the order the Court construed the following terms:

Claim Term	Construction
“concentrate”/”concentrated byproduct”/ “concentrated thin stillage”.	“syrup containing water, oil, and solids resulting from the concentrating or evaporating process”.
“mechanically processing”	“to subject to a mechanical device (or devices) to effect a particular result”.
“heating and mechanically processing the concentrate/ concentrated byproduct/concentrated thin stillage to separate the oil from the concentrate/concentrated byproduct/concentrated thin stillage”	“the Concentrate Term (as construed by the Court in this Order) subjected to heat and a mechanical device (or devices) to extract a product that is substantially oil from the Concentrate Term (as construed by the Court in this Order)”.
“centrifuging the concentrate to recover oil “.	“processing the concentrate (as defined by the Court in this Order) with a centrifuge to separate the oil from the concentrate so that the oil stream coming out of the centrifuge is substantially oil and the remaining concentrate stream coming out of the centrifuge is substantially free of oil”

Practice Tip:Previous articles about this litigation have posted many times by Indiana Intellectual Property Law News including:

GS Cleantech Files Patent Infringement Lawsuit Against Flottweg in Indiana

Multiple Patent Infringement Suits Brought by Greenshift Consolidated in Indiana

GS CleanTech Sues Iroquois Bio-Energy for Patent Infringement

Cardinal Ethanol Sued by GS Cleantech for Patent Infringement

September 8, 2011

Patent Claims for Catalytic Convertor Manufacturing Method Construed in BASF Corp. v. Aristo, Inc.

By Overhauser Law Offices, LLC

[Disclosure: Overhauser Law Offices, LLC, the publisher of this website, represents a party in this litigation]

Chief Judge Philip P. Simon for the Northern District of Indiana has construed the claims of Patent No. 5,866,210, METHOD FOR COATING A SUBSTRATE.

The ‘210 patent describes a method of coating substrates such as those used in catalytic converters. Catalytic converters are typically found in automobile and truck engines, and their purpose is to reduce or remove harmful emissions from engine exhaust. The type of catalytic converter relevant here is principally composed of a core – or substrate – which sits inside a metal housing. The substrate is a single unit (a monolithic substrate) that has a number of honeycomb-like channels running parallel to each other within the metal frame. Through various methods, the inner walls of these channels are coated with a catalyst slurry made of precious metals. As engine exhaust flows through the substrate’s channels, the precious metals coating the channels’ inner walls cause a chemical reaction that converts the harmful engine emissions into more benign substances. But because the precious metals are expensive, care must be taken to sufficiently coat the channels without wasting the catalytic slurry.

The ‘210 patent teaches a method of coating the channels of the substrate through a process called vacuum infusion coating. Through this process, one end of the substrate is partially immersed in a dip pan of catalytic slurry. The dip pan, the size and depth of which may vary, is loaded with an amount of slurry exceeding the amount of coating necessary to coat the walls of the substrate to a desired level. A vacuum is applied to the other end of the substrate, which draws the slurry of precious metals up the channels of the substrate to coat the inner walls of the substrate’s channels. The vacuum continues to suck air through the channels as the substrate is removed from the pan, and then the coating dries to the channel walls. The ‘210 patent teaches that each of the channels of the substrate are coated to the same length, creating a “uniform coating profile.” And as the specification explains, “the typical coating operation requires the immersion of one end of the substrate into the coating media followed by drying and then the insertion of the opposed end of the substrate into the coating media followed by drying and curing.”

The Court’s ruling on claim terms proposed by patent attorneys for the parties were as follows:
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