Case 1:10-cv-11041-NMG Document 106 Filed 11/26/12 Page 1 of 32
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`United States District Court
`District of Massachusetts
`KONINKLIJKE PHILIPS ELECTRONICS
`)
`N.V., PHILIPS ELECTRONICS NORTH
`)
`AMERICA CORPORATION,
`)
`Plaintiffs,
`
`)))
`
`)
`v.
`)
`)
`ZOLL MEDICAL CORPORATION
`)
`Defendant,
`___________________________________)
`
`Civil No.
`10-11041-NMG
`
`MEMORANDUM & ORDER
`
`GORTON, J.
`I.
`Background
`A. The Parties
`On June 18, 2010, Philips Electronics North America
`Corporation, a Delaware corporation with its principal place of
`business in Massachusetts, and its parent company Koninklijke
`Philips Electronics N.V., a Dutch corporation with its principal
`place of business in the Netherlands, (collectively, “Philips”)
`filed a patent infringement suit against ZOLL Medical Corporation
`(“ZOLL”), a Massachusetts corporation with its principal place of
`business in Massachusetts.
`Philips’ complaint, in 15 counts, is for infringement of
`U.S. Patent No. 5,607,454, No. 5,721,482, No. 5,735,879, No.
`5,749,905, No. 5,773,961, No. 5,800,460, No. 5,803,927, No.
`5,836,978, No. 5,879,374, No. 6,047,212, No. 6,178,357, No.
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`Philips Exhibit 2030
`Zoll Lifecor v. Philips
`IPR2013-00609
`
`Page 1 of 32
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`
`
`United States District Court
`District of Massachusetts
`KONINKLIJKE PHILIPS ELECTRONICS
`)
`N.V., PHILIPS ELECTRONICS NORTH
`)
`AMERICA CORPORATION,
`)
`Plaintiffs,
`
`)))
`
`)
`v.
`)
`)
`ZOLL MEDICAL CORPORATION
`)
`Defendant,
`___________________________________)
`
`Civil No.
`10-11041-NMG
`
`MEMORANDUM & ORDER
`
`GORTON, J.
`I.
`Background
`A. The Parties
`On June 18, 2010, Philips Electronics North America
`Corporation, a Delaware corporation with its principal place of
`business in Massachusetts, and its parent company Koninklijke
`Philips Electronics N.V., a Dutch corporation with its principal
`place of business in the Netherlands, (collectively, “Philips”)
`filed a patent infringement suit against ZOLL Medical Corporation
`(“ZOLL”), a Massachusetts corporation with its principal place of
`business in Massachusetts.
`Philips’ complaint, in 15 counts, is for infringement of
`U.S. Patent No. 5,607,454, No. 5,721,482, No. 5,735,879, No.
`5,749,905, No. 5,773,961, No. 5,800,460, No. 5,803,927, No.
`5,836,978, No. 5,879,374, No. 6,047,212, No. 6,178,357, No.
`-1-
`
`Philips Exhibit 2030
`Zoll Lifecor v. Philips
`IPR2013-00609
`
`Page 1 of 32
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`Case 1:10-cv-11041-NMG Document 106 Filed 11/26/12 Page 2 of 32
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`6,304,783, No. 6,356,785, No. 6,441,582 and No. 6,871,093, which
`relate to components of automated external defibrillators
`(“AEDs”). Philips seeks a declaration that ZOLL is infringing
`1
`the patents-in-suit, equitable relief, including an injunction,
`and monetary damages.
`In a related, later-filed case, ZOLL brought suit against
`Philips for five counts of patent infringement of U.S. Patent No.
`5,330,526, No. 5,391,187, No. 5,470,343, No. 5,575,807 and No.
`RE39,250, which also relate to components of defibrillators and
`supplemental products, including electrodes and power supplies.
`ZOLL seeks a declaration that Philips is infringing the ZOLL
`patents-in-suit, equitable relief, including an injunction, and
`damages. In August, 2011 the two cases were consolidated.
`The parties submitted 35 claims for construction. The Court
`issued an order requesting that the parties narrow the claims for
`construction to 16. The Court conducted a Markman hearing on
`October 25, 2012 at which counsel offered arguments in support of
`their proposed claim construction of 15 disputed terms. The
`following is the Court’s ruling with respect to those terms.
`B.
`The Technology
`1.
`Philips’ ‘454, ‘879, ‘905, and ‘978 Patents
`Six of Philip’s patents (‘454, ‘879, ‘905, ‘978, ‘212 and
`‘927) are referred to as the “waveform patents” because they
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`1
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` Hereinafter each patent will be referred to by its last three numbers.
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`relate to the electrical signal (or “waveform”) that shocks the
`patient.
`External defibrillators deliver energy to a patient’s heart
`via electrodes applied to the surface of the patient’s torso.
`Due to physiological differences among patients, the resistance
`to the flow of electricity through the tissue between the
`defibrillator electrodes and the patient’s heart (“impedance”)
`varies from patient to patient depending on the conductivity of
`their tissues. The intensity of the shock delivered to the heart
`by the defibrillator can also vary depending on that impedance.
`A shock that is effective to treat a low-impedance patient may
`not be effective to treat a high-impedance patient.
`Prior art defibrillators required the operator to shock the
`patient first with an energy level appropriate for the average
`patient. If the first shock did not work, the operator could
`then raise the energy level and keep trying. The ‘454, ‘879,
`‘905 and ‘978 patents overcome that problem by providing an
`external defibrillator that automatically compensates for the
`different levels of impedance in individual patients in real time
`by measuring the patient’s impedence and adjusting the discharge
`accordingly.
`Philips’ ‘212 Patent
`2.
`The particular waveform described in the waveform patents
`above is “biphasic.” With a biphasic waveform, the system flips
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`a switch midway to change from positive voltage to negative.
`Biphasic waveforms had been used in implanted defibrillators but
`until this patent there was no circuitry that could generate the
`biphasic waveform at the higher voltages required by external
`defibrillators. The ‘212 patent discloses a circuit that can
`deliver the biphasic waveform at the higher voltages required by
`an external defibrillator.
`3.
`Philips’ ‘374 and ‘460 Patents
`The ‘374 and ‘460 patents (“the self test patents”) cover an
`external defibrillator that can perform self tests to ensure it
`is functional and ready to use. Prior art external
`defibrillators were generally designed for hospitals where
`equipment is frequently tested and maintained. Portable
`defibrillators designed for a home or office are much less
`frequently tested and thus might not be functional when needed.
`The ‘374 and ‘460 patents disclose a defibrillator that conducts
`automatic self tests, some while switched “on” and others while
`switched “off.” After the test, the defibrillator indicates the
`result “visually and audibly.” The patents also describe a
`“system monitor” that performs the various functions of the self
`tests.
`
`Philips’ ‘093 Patent
`4.
`The ‘093 patent is directed to a defibrillator that includes
`an indicator (audible, visual or both) that reports whether the
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`defibrillator is functioning properly. The indicator can be
`activated automatically or in response to a "user-triggered
`inquiry.”
`
`Philips’ ‘785 Patent
`5.
`The ‘785 patent is directed to a defibrillator that uses
`voice and visual prompts to instruct the user on how to perform
`CPR correctly because the steps of CPR are often forgotten, even
`by trained professionals. The covered defibrillator also
`monitors the heart rhythm of the patient to determine whether it
`is treatable by shock and, if so, prompts the rescuer to deliver
`CPR and follow the shock protocol.
`6.
`ZOLL’s ‘187 Patent
`The ‘187 patent is directed to a semi-automatic
`defibrillator which has an alarm. In previous defibrillators the
`alarm was activated by either the heart rate (“averaged QRS
`rate”) or a shock advisory to indicate to the operator whether
`the electrocardiogram shows an abnormal heart rhythm of the sort
`that can be corrected by defibrillation shock. The ‘187 patent
`is directed to an alarm based on both of these inputs.
`7.
`ZOLL’s ‘807 Patent
`The ‘807 patent relates to a power supply that provides an
`“AC disconnect alarm.” Because a defibrillator is used in
`emergency situations it is crucial that it is charged when
`needed. Thus, as the patent explains, “to ensure[] that a
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`battery of the defibrillator will not inadvertently be left
`uncharged” the power supply “produces an alarm when it is not
`connected to a source of AC power.” Because this alarm would be
`distracting during actual emergencies, the alarm signal is only
`produced when the defibrillator is switched off.
`8.
`ZOLL’s ‘250 Patent
`The ‘250 patent is related to ZOLL’s ‘526 patent and is
`directed to an "electrode package." Inside the package is a
`"conductor" that is
`covered with a water based, conductive adhesive gel that
`contacts a patient's skin and electrically connects the
`electrode to the patient.
`The package is an "envelope" formed from a sheet of material
`folded in half that opens like a book. It provides quick and
`easy access to the electrodes but also protects them when it is
`closed.
`
`ZOLL’s ‘526 Patent
`9.
`The ‘526 patent is related to the ‘250 patent and also
`concerns defibrillation electrodes. These electrodes are gel-
`covered discs that are placed on the patient’s chest. This
`patent covers a gel arrangement with an electrical resistance
`that allows for effective shock treatment while also making it
`less likely that the patient will be burned.
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`III. Analysis
`A. Principles of Claim Construction
`In analyzing a patent infringement action, a Court must
`1) determine the meaning and scope of the patent claims asserted
`to be infringed and 2) compare the properly construed claims to
`the infringing device. Markman v. Westview Instruments, Inc., 52
`F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370
`(1996). The first step, known as claim construction, is an issue
`of law for the court to decide. Id. at 979. The second step is
`determined by the finder of fact. Id.
`The Court’s responsibility in construing claims is to
`determine the meaning of claim terms as they would be understood
`by persons of ordinary skill in the relevant art. Bell Atl.
`Network Servs., Inc. v. Covad Commc’ns Grp., Inc., 262 F.3d 1258,
`1267 (Fed. Cir. 2001). The meaning of the terms are initially
`discerned from three sources of intrinsic evidence: 1) the claims
`themselves, 2) the specification and 3) the prosecution history
`of the patent. See Vitronics Corp. v. Conceptronic, Inc., 90
`F.3d 1576, 1582–83 (Fed. Cir. 1996).
`The claims themselves define the scope of the patented
`invention. See Philips, 415 F.3d at 1312. Claim terms are
`generally given their “ordinary and customary meaning”, which is
`the meaning that a person skilled in the art would attribute to
`the claim term. See id. at 1312-13. Even if a particular term
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`has an ordinary and customary meaning, however, a court may need
`to examine the patent as a whole to determine if that meaning
`controls. Id. at 1313 (“[A] person of ordinary skill in the art
`is deemed to read the claim term ... in the context of the entire
`patent....”); see also Medrad, Inc. v. MRI Devices Corp., 401
`F.3d 1313, 1319 (Fed. Cir. 2005) (noting that a court cannot
`construe the ordinary meaning of a term “in a vacuum”).
`Ultimately, the correct construction will be one that “stays true
`to the claim language and most naturally aligns with the patent's
`description of the invention ....” Id. at 1316 (citation
`omitted).
`The patent specification is
`the single best guide to the meaning of a disputed term
`[because it may reveal] a special definition given to a
`claim term that differs from the meaning it would
`otherwise possess [or contain] an intentional disclaimer,
`or disavowal, of claim scope by the inventor.
`Phillips v. AWK Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en
`banc). The Court should also consult the prosecution history to
`see how the inventor and PTO understood the patent and to ensure
`the patentee does not argue in favor of an interpretation it has
`disclaimed. Id. at 1317.
`In the rare event that analysis of the intrinsic evidence
`does not resolve an ambiguity in a disputed claim term, the Court
`may turn to extrinsic evidence, such as inventor and expert
`testimony, treatises and technical writings. Id. at 1314.
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`Although extrinsic evidence may be helpful in construing claims,
`the intrinsic evidence is afforded the greatest weight in
`determining what a person of ordinary skill would have understood
`a claim to mean. Id. at 1324.
`B.
`Disputed Terms
`1. Monitoring/monitoring. . .during (Philips’ ’454,
`’879, ’905, ’978 Patents)
`The dispute centers on whether monitoring must occur
`continuously throughout the discharge step, as ZOLL contends, or
`only one or more times during the discharge step, as Philips’
`contends.
`ZOLL requests that the Court adopt the ordinary meaning of
`monitoring, which it asserts, has a notion of “ongoingness.”
`ZOLL argues that because the “discharge step” (construed below)
`takes place over time, “monitoring” must also occur over a period
`time and cannot be only a single measurement during the step.
`ZOLL further asserts that the ‘454 patent actually distinguishes
`prior art models because they merely “measured” patient impedance
`and did not continually monitor impedance in “real time.” As a
`result, ZOLL requests that the Court construe the term as
`“sampling on a regular or ongoing basis” because this definition
`is the term’s ordinary meaning according to the American Heritage
`Dictionary.
`Philips, however, argues that ZOLL’s reliance on a single
`dictionary definition ignores the intrinsic evidence. As a
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`result, Philips requests that the Court adopt the construction
`that the United States District Court for the Western District of
`Washington selected in construing “monitoring” as “measuring...
`one or more times.” Koninklijke Philips Elec.s NV v. Defibtech
`LLC, 397 F. Supp. 2d 1257 (W.D. Wash. 2005).
`The Difibtech Court noted that “monitoring” and “measuring”
`are both used in related Philips patents. Generally, using
`different terms raises an inference that the terms have different
`meanings, but that inference is not determinative. Desper Prods.,
`Inc. v. QSound Labs, Inc., 157 F.3d 1325, 1337 n. 3 (Fed. Cir.
`1998). The Difibtech Court concluded that because “both
`measuring and monitoring occur during periods of time” in the
`Philips patents, there is “little reason to assume that one term
`excludes single measurements and one does not.” Defibtech 397 F.
`Supp. 2d at 1264. As a result, the Court construed “monitoring”
`during the discharge step to require only a “single measurement.”
`Id.
`
`The Defibtech Court determined that if “monitoring” were
`construed as covering only a single measurement, it would require
`reading out preferred embodiments. Reading out preferred
`embodiments is an approach that is “rarely, if ever, correct.”
`Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed.
`Cir. 1996). Each of the six waveform patents, discloses an
`invention the preferred embodiment of which has three “aspects.”
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`Depending on the patient’s impedance, one of the three aspects
`requires only a single measurement. As a result, the patent must
`cover single measurements as well as ongoing monitoring.
`Accordingly, this Court adopts the construction “measuring . . .
`one or more times.”
`2. The discharge step/the discharging step
`ZOLL requests that the Court construe “discharge step” to
`make clear that it is “not a test pulse to measure patient
`impedance.” The Court believes that by requesting the addition
`of that negative limitation to the claim term, ZOLL is proposing
`that the Court resolve an infringement question during claim
`construction. Doing so would contradict the purpose of a Markman
`hearing because “the role of the district court in construing
`claims” is not to “read limitations into the claims to obviate
`factual questions of infringement.” Am. Piledriving Equip. v.
`Geoquip, Inc. 637 F.3d 1324, 1331 (Fed. Cir. 2011). Here, the
`Court declines to adopt ZOLL’s construction. Instead, the Court
`adopts the plain meaning of the term and construes it to mean
`“the step of discharging the energy source.”
`The Court notes, however, that during prosecution the
`patentee equated “discharge” with “shock” in describing prior
`art. That suggests that the “discharge step” was not intended to
`describe every possible delivery of energy from the energy
`source.
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`3. Plurality of electronic switches (Philips’ ’212
` Patent)
`Philips requests that the Court adopt the same construction
`of this term as did the Court in Defibtech II, which limited the
`term to the “five-switch configuration disclosed in the
`specification.” Koninklijke Philips Elect. NV v. Defibtech LLC,
`C03-1322JLR, 2005 WL 3500783, at *4 (W.D. Wash. Dec. 21, 2005)
`(Defibtech II). Philips asserts that both the patent examiner
`and the applicants understood a “plurality of electronic
`switches” to refer to the five-switch circuit in Figure 11.
`In Defibtech II the court held that although the patentee
`disavowed the prior art five-switch configuration contained in
`the Swanson patent, the “inventors did not...expressly limit the
`invention to the five-switch configuration that they disclosed in
`their patent application.” 2005 WL 3500783 at *3. At the Markman
`hearing in the present case both parties agreed that the
`statements made during prosecution of the ‘212 patent do not meet
`the standard for a “clear and unmistakable” surrender necessary
`to reject the ordinary meaning. Omega Eng’g, Inc. v. Raytek
`Corp., 334 F.3d 1314, 1323-26 (Fed. Cir. 2003). In Defibtech II
`the Court relied on extrinsic evidence including an expert
`declaration and inventor testimony to reach the conclusion that
`“plurality of switches” could only cover the five switch
`configuration contained in Figure 11. Neither of those pieces of
`extrinsic evidence are, however, before this Court which
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`therefore declines to adopt that construction.
`In Defibtech II, Philips argued contrary to its current
`position, noting that to construe the “plurality of electronic
`switches” to cover only the five switch embodiment is
`
`contrary to the plain, ordinary definition of the word
`plurality, which means two or more. ‘Plurality’ does not
`mean ‘only five’ or ‘five or more.’
`This Court agrees. Because the ordinary meaning of plurality is
`clear to a jury, the term does not require construction.
`4. Prior to any attempted use of the defibrillator
` (Philips’ ’374 Patent)
`The parties dispute the meaning of “attempted use” and thus
`disagree over when the self test must occur. The parties do
`agree that self tests performed while the defibrillator is turned
`off fall within the scope of the applicable claims. The
`contested issue is, however, whether “prior to any attempted use”
`includes self tests that are performed after the defibrillator is
`turned on but before attempted use to treat a patient. Philips
`asserts that the self test must be performed before the
`defibrillator is turned on. Zoll proposes a construction in
`which the self test can occur at any point after the
`defibrillator is turned on but before it is used to treat a
`patient. This Court agrees with the Defibtech Court that
`It makes little difference what the phrase ‘prior to any
`attempted use’ means, because the claims in which it
`appears impose modifications that resolve the parties’
`disputes.
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`397 2d. at 1268. As a result, the Court will examine the precise
`use of the term in each of the Claims in which the term appears.
`Claim 41 teaches a “periodic test signal generator.” Claim
`42 states that the test signal will be generated “periodically.”
`According to the “detailed description of the preferred
`embodiment” in the ‘374 Patent these periodic self-tests occur
`daily, weekly or monthly, even when the defibrillator is turned
`off. Thus, “by their nature, these tests occur before any use of
`the defibrillator, including merely turning the device on.” Id.
`1269. As a result, the Defibtech court construed the term when
`used in Claims 41 and 42 to mean “prior to any attempted use of
`the defibrillator, even non-therapeutic uses.” Although this
`Court is persuaded by the same reasoning adopted in Defibtech, it
`prefers the more easily understood construction “prior to an
`operator turning on the defibrillator.”
`In Claim 67 the language requires that the generation of a
`test signal occur “without human intervention.” As a result,
`that language must also refer to one of the periodic self-tests
`and the status indication must occur prior to turning on the
`defibrillator. Thus, the Court adopts the same construction as
`in Claims 41 and 42 where “prior to any attempted use” means
`“prior to an operator turning on the defibrillator.”
`Claims 1 and 67 require a different construction. Claim 1
`does not indicate which of the multiple types of self-test in the
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`‘374 Patent is required. Claim 1 does not require all of the
`tests, instead, it requires only one. As the Defibtech Court
`described, a defibrillator that was designed to conduct a “run
`time” test and to monitor the defibrillator “continually” would
`not reveal its status before it was turned on, even though
`turning it on is a “use.” Id. at 1269. Similarly, a
`defibrillator that could conduct a manual self-test could not
`indicate its status prior to such a test, even though this test
`is itself a “use.” Id. Thus, it is clear that Philips’ proposed
`construction “prior to an operator turning on the defibrillator”
`does not accurately express the meaning of this term.
`The Defibtech court found that
`the only “uses” of the defibrillator for which the
`invention of Claim 1 would invariably have means to
`provide an indication of pre-use status are uses in
`treating a patient.
`In the case of a defibrillator capable of running a randomly
`selected self-test the device would only be guaranteed to
`“indicate status before anyone used it to treat a patient,
`but not necessarily before other uses.” Id. It is clear,
`therefore, that in some instances “prior to any attempted
`use” means “prior to use to treat a patient.” In the case
`of a defibrillator with means to perform a run-time test,
`however, the term means “prior to an operator turning on the
`defibrillator.” Therefore, with respect to these Claims,
`the Court adopts the construction “prior to any attempted
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`use of the defibrillator to treat a patient, and in some
`cases prior to an operator turning on the defibrillator.”
`Claim 44 requires a test signal generated
`“automatically in response to a predetermined event or
`condition.” This Claim includes at least one kind of self-
`test but does not include the “periodic” self-tests. This
`Court agrees with the reasoning in Defibtech that if the
`test is a “run-time” test the status could not be indicated
`before the defibrillator was turned on. Id. As a result,
`the Court applies the same construction as in Claim 1.
`5. Test signal (Philips’ ’374, ’460 Patents)
`The dispute surrounding the construction of “test
`signal” also relates to the Defibtech court’s prior
`construction of the term. In that case, the court
`acknowledged that the patent claims are “inconsistent” in
`the use of the term “test signal.” Id. at 1267. As a
`result, the court construed most instances of “test signal”
`to mean “a signal associated with testing,” but in some
`instances found that “additional claim language limits the
`term to a ‘signal that initiates testing’.” Id. ZOLL
`requests that the Court adopt the Defibtech Court’s
`construction while Philips argues that “a signal associated
`with testing” is the better construction because it is one
`that “a jury can apply uniformly across the board, yet still
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`be understood within the context of each claim.”
`The Defibtech court found that the claims in the ‘460
`and ‘374 patents fell into three classes. Id. First, in
`claims that “expressly disclose one or more self-tests
`performed ‘in response’ to the test signal or other
`stimuli”, “the test signal is a signal that initiates a
`test, not one that performs it.” Id. Second, in claims
`where the test signal is generated by the system monitor,
`the test signal is also one that initiates testing. Id.
`Finally, in the third category where the test signals are
`neither used to initiate self-testing nor generated by the
`system monitor, the “test signal” is simply “a signal
`associated with testing.” Id. Thus, although “signal
`associated with testing” applies in the third category, the
`other two categories require the additional limitation of “a
`signal that initiates testing.”
`While generally “the same claim term used in the same
`patent ‘carries the same construed meaning’” this rule
`applies only if the court is not “otherwise compelled.”
`Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1334 (Fed.
`Cir. 2003). Here, this Court agrees with the ruling in
`Defibtech that the limitations in several of the claims
`require the court to reach two different constructions of
`“test signal.” As a result, the Court construes this term
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`to mean the following:
`Construction
`“A signal that
`initiates
`testing”
`“A signal that
`initiates
`testing”
`“A signal
`associated
`with testing”
`
`Patent
`‘374
`
`‘460
`
`‘374
`
`Claims
`22, 25-27, 42, 44-45,
`51-52, 61-62, 64-65,
`67-69, 71-72
`1-6
`
`1-6, 10, 21, 34-37,
`41, 43
`
`6. A heart rate alarm circuit in which the inputs
`comprise an averaged QRS rate and the shock
`advisory indication (ZOLL’s ’187 Patent)
`The Summary of the Invention in ZOLL’s ‘187 Patent states
`that it features “an alarm driven by both a heart rate detector
`and a fibrillation/tachycardia advisory algorithm.” This
`distinction sets the ‘187 patent apart from prior art in which
`alarms were based on only one of those inputs. Philips requests
`that the word “both” be added to the claim construction to make
`this distinction clear. The Court finds, however, that the claim
`language is already clear that both inputs are required and is
`capable of being understood correctly by the jury. As a result,
`the Court declines to construe this term.
`7. Generate an alarm when the monitoring circuitry
`determines that the external power connection is not
`connected to a source of external power and that the
`medical device to which the power supply may be
`connected is not turned on/Generating an alarm when the
`external power connection is not connected to the
`external power source and the medical device is not
`-18-
`
`Page 18 of 32
`
`
`
`Case 1:10-cv-11041-NMG Document 106 Filed 11/26/12 Page 19 of 32
`
`turned on (ZOLL’s ’807 Patent)
`Philips argues that the alarm circuitry is configured to
`generate an alarm “as a result of” the monitoring circuitry
`determining that the device is both not connected to external
`power and not turned on. Philips asserts, therefore, that unless
`the Court construes “when” to mean “as a result of” the causal
`connection will not be clear to the jury.
`The Court finds that the patent does not, however, require
`that the alarm actually be triggered by the two events but only
`that the alarm function when the two events occur. Thus, if the
`power supply is connected to AC power and the defibrillator is
`turned on the power supply will be prevented from activating the
`alarm. Because the patent language already makes this
`relationship clear the Court declines to construe it further.
`8. A method of supplying power from an external power
`source to a battery-powered medical device for charging
`a battery of the medical device and operating the
`medical device (ZOLL’s ’807 Patent)
`Philips requests that the Court construe the claim language
`to add the words “by a power supply” to make “the method of
`supplying power” clear to the jury. This Court, however, agrees
`with ZOLL that the inclusion is unnecessary. The language in
`Claim 15 already indicates that “the method of supplying power”
`includes “providing a power supply.” As a result, the additional
`inclusion is superfluous and the Court declines to construe this
`term.
`
`-19-
`
`Page 19 of 32
`
`
`
`Case 1:10-cv-11041-NMG Document 106 Filed 11/26/12 Page 20 of 32
`
`9. Power supply (ZOLL’s ’807 Patent)
`ZOLL argues that “power supply” is a common term that
`requires no construction. This Court agrees with Philips,
`however, that the term requires construction to improve juror
`comprehension but declines to adopt Philips’ proposed
`construction, particularly the inclusion of the words “connects
`to a source of AC power.” That language is too narrow to address
`the actual invention. For example, Claim 1 recites a “connection
`for bringing external power into the power supply.” Such
`language suggests that the power supply does not always connect
`directly to a source of AC power. Instead, the Court relies on
`the patent specification to adopt the construction “a unit that
`connects to a device and that supplies power to the device.”
`10. Envelope comprising a sheet of material (ZOLL’s
` ’250 Patent)
`The underlying dispute over the two claim terms in the ‘250
`patent relates to whether the “envelope” must be fully enclosed.
`ZOLL asserts that the term should be given its “ordinary meaning”
`and thus does not require construction. Philips, on the other
`hand, relies on the purpose of the invention to argue that an
`envelope must be an “enclosure.” This Court agrees with Philips
`and construes the term to mean “a sheet of material that forms an
`enclosure.”
`Claim 1 teaches that the envelope has a releasable “seal”
`that forms a “sealed first compartment” and allows the electrodes
`-20-
`
`Page 20 of 32
`
`
`
`Case 1:10-cv-11041-NMG Document 106 Filed 11/26/12 Page 21 of 32
`
`to be “isolated from an external environment.” This isolation is
`described as necessary to “prevent[] the adhesive gel from drying
`out.” The Court is persuaded that if the envelope did not
`“enclose” the electrodes, the gel would dry out and the invention
`would not work as described. As a result, the Court finds that
`the “envelope” is an enclosure.
`11. Seal (ZOLL’s ’250 Patent)
`This term is closely related to the “envelope” construed in
`the proceeding section. ZOLL argues that the seal need only
`provide a “barrier” that serves as “something that closes the
`envelope by joining parts of it together.” This construction,
`however, ignores the purpose of the invention. As Philips points
`out, a porous barrier could still join the parts together but
`would not serve the purpose of the invention. If the seal is not
`airtight, it will not “isolate the electrode from the external
`environment” as the patent requires.
`Further, the ‘250 patent uses the terms “seal” and “barrier”
`differently. For example, in Claim 13 the “gasket” that allows
`the wires that connect to the electrode to pass through the
`envelope is described as a “barrier element”. Because the gasket
`allows items to pass through, it is not airtight. That word
`choice suggests that the patentee chose the term “seal” to
`distinguish from other non-airtight barriers within the same
`invention. The seal is also repeatedly described as a “heat
`
`-21-
`
`Page 21 of 32
`
`
`
`Case 1:10-cv-11041-NMG Document 106 Filed 11/26/12 Page 22 of 32
`
`seal”, which is further evidence that it is intended to be
`airtight. As a result, the Court construes “seal” to mean an
`“airtight barrier.”
`12. A concentration of an electrolyte that produces a
`combination series resistance of two of said
`electrodes, when measured with the electrodes
`configured in a series circuit with a 50Ù resistance,
`and with the electrolytic gel layer of each electrode
`in contact with that of the other electrode, that is
`greater than 1Ù when a 200 Joule defibrillation pulse
`is discharged into the series circuit (ZOLL’s ’526
`Patent)
`ZOLL asserts that no construction is needed. Philips,
`responds however, that Claim 1 of the ‘526 patent is indefinite
`because there is no explanation “for how one skilled in the art
`would choose specific testing conditions to determine whether the
`resistance of a given gel electrode is ‘greater than 1Ù’.” A
`term is indefinite where the product “might or might not infringe
`depending on its usage in changing circumstances.” Geneva Pharms.
`Inc. v. GlaxoSmithKline PLC, 349 F.3d 1373, 1384 (Fed. Cir.
`2003).
`According to Philips, gel electrodes are tested under the
`industry standards for defibrillators set by the Association for
`Advancement of Medical Instrumentation (AAMI). These standards
`include a variety of test conditions including the temperature of
`the gel, the amount of time the gel has been exposed to air
`(humidity) and the number of shocks delivered through the gel.
`The ‘526 patent does not, however, specify the test conditions
`
`-22-
`
`Page 22 of 32
`
`
`
`Case 1:10-cv-11041-NMG Document 106 Filed 11/26/12 Page 23 of 32
`
`necessary to determine whether the claim limitation is met.
`Philips conducted testing under a variety of temperature
`conditions. At 35° centigrade (“C”) the resistance did not
`exceed 1Ù but a
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