Case 1:18-cv-00303-RGA Document 61 Filed 10/29/18 Page 1 of 4 PageID #: 1408
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`BAXTER HEALTHCARE CORP.,
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`Plaintiff,
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`V.
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`HOSPIRA, INC. and ORION CORP.,
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`Defendants.
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`C.A. No. l 8-cv-303-RGA
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`MEMORANDUM ORDER
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`Presently before the Court is the issue of claim construction of terms in U.S. Patent No.
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`6,716,867 ("the '867 patent"). I have considered the parties' joint claim construction brief. (D.I.
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`58).
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`I.
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`LEGAL STANDARD
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`"It is a bedrock principle of patent law that the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude." Phillips v. AWH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) ( en bane) ( citation omitted).
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`'" [T]here is no magic formula or catechism for
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`conducting claim construction.'
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`Instead, the court is free to attach the appropriate weight to
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`appropriate sources 'in light of the statutes and policies that inform patent law."' Soft View LLC v.
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`Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips, 415 F.3d at 1324).
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`When construing patent claims, a court considers the literal language of the claim, the patent
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`specification, and the prosecution history. Markman v. Westview Instruments, Inc., 52 F.3d 967,
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`979-80 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370 (1996). Of these sources, "the specification
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`is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the
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`single best guide to the meaning of a disputed term." Phillips, 415 F.3d at 1315.
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`"[T]he words of a claim are generally given their ordinary and customary meaning . .. .
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`[This is] the meaning that the term would have to a person of ordinary skill in the art in question
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`at the time of the invention, i.e., as of the effective filing date of the patent application." Id. at
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`1312-13. "[T]he ordinary meaning of a claim term is its meaning to [an] ordinary artisan after
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`reading the entire patent." Id. at 1321. "In some cases, the ordinary meaning of claim language
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`as understood by a person of skill in the art may be readily apparent even to lay judges, and claim
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`construction in such cases involves little more than the application of the widely accepted meaning
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`of commonly understood words." Id. at 1314.
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`When a court relies solely upon the intrinsic evidence-the patent claims, the specification,
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`and the prosecution history-the court's construction is a determination oflaw. See Teva Pharm.
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`USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 , 841 (2015). The court may also make factual findings
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`based upon consideration of extrinsic evidence, which "consists of all evidence external to the
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`patent and prosecution history, including expert and inventor testimony, dictionaries, and learned
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`treatises." Phillips, 415 F.3d at 1317-19. Extrinsic evidence may assist the court in understanding
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`the underlying technology, the meaning of terms to one skilled in the art, and how the invention
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`works. Id. Extrinsic evidence, however, is less reliable and less useful in claim construction than
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`the patent and its prosecution history. Id.
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`"A claim construction is persuasive, not because it follows a certain rule, but because it
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`defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa ' per Azioni,
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`158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would exclude
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`Case 1:18-cv-00303-RGA Document 61 Filed 10/29/18 Page 3 of 4 PageID #: 1410
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`the inventor's device is rarely the correct interpretation." Osram GMBH v. Int'! Trade Comm 'n,
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`505 F.3d 1351 , 1358 (Fed. Cir. 2007) (citation omitted).
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`II.
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`PA TENT AT ISSUE
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`Claim 1 of the '867 patent reads (as amended by the May 25, 2004 Certificate of
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`Correction):
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`1. A method of sedating a patient in an intensive care unit, which comprises
`administering to the patient an effective amount of dexmedetomidine or a
`pharmaceutically acceptable salt thereof, wherein the patient remains arousable and
`orientated.
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`(D.I. 59 at 106).
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`III.
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`CONSTRUCTION OF AGREED-UPON TERM
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`The Court adopts the following agreed-upon construction. 1
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`Claim Term
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`"dexmedetomidine''
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`Construction
`"substantially pure, optically active
`dextrorotary stereo isomer of medetomidine,
`as the free base or pharmaceutically
`acceptable salt"
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`IV.
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`CONSTRUCTION OF DISPUTED TERM
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`1. "intensive care unit"
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`a. Plaintiff's Proposed Construction : "any setting that provides care to
`critically ill patients, characterized by high nurse-to-patient ratios, continuous
`medical supervision, and intensive monitoring"
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`b. Defendants' Proposed Construction: "any setting that provides intensive
`care" or "any setting that provides care to critically ill patients, typically
`characterized by high nurse-to-patient ratios, continuous medical supervision,
`and intensive monitoring"
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`c. Court 's Construction: "any setting that provides intensive care"
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`1 It strikes me that the agreed upon construction is actually for "dexmedetomidine or a pharmaceutically
`acceptable salt thereof."
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`The ' 867 patent explicitly states that "the word intensive care unit encompasses any
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`setting that provides intensive care." '867 patent at 1: 17-19, 3:49-51, 4:44-45. When "a patent
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`applicant has elected to be a lexicographer by providing an explicit definition in the specification
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`for a claim term[,] . . . the definition selected by the patent applicant controls. The patentee's
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`lexicography must, of course, appear with reasonable clarity, deliberateness, and precision before
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`it can affect the claim." Merck & Co., Inc. v. Teva Pharmaceuticals USA, Inc., 395 F.3d 1364,
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`1370 (Fed. Cir. 2005) (citations omitted).
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`Plaintiff argues that the patentee's definition is circular and thus inherently ambiguous.
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`(D.I. 58 at 7). I don't think the use of "intensive care" to define "intensive care unit" alone
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`makes the definition ambiguous. Instead, I believe Plaintiffs argument depends on whether
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`"intensive care" is readily understood by a person of ordinary skill in the art. The parties appear
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`to agree that it is. (D.I. 58 at 8, 16). In fact, Plaintiff argues, "Here, 'intensive care' has a well
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`understood plain and ordinary meaning to a person of skill in the art." (Id. at 8). As such, "any
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`setting that provides intensive care" should also be well understood by a person of skill in the art.
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`Therefore, I adopt Defendants' construction based on the patentee' s lexicography.
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`IT IS SO ORDERED this 'lj__ day of October 2018.
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