Case 2:14-cv-00070-TC Document 277 Filed 09/11/14 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
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`CATHETER CONNECTIONS, INC.,
`Plaintiff,
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`CONTEMPT ORDER
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`vs.
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`IVERA MEDICAL CORPORATION,
`Defendant.
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`Case No. 2:14-CV-70-TC
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`Catheter Connections, Inc. is the owner of several patents for plastic caps that are used to
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`cover and disinfect the male luer post of an intravenous infusion line (called “male disinfecting
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`caps”). Catheter Connections has sued Ivera Medical Corporation alleging, among other things,
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`that Ivera’s male disinfecting cap, the Curos Tips device, infringes claims of two of its patents. 1
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`On April 24, 2014, the court issued a Preliminary Injunction Order prohibiting Ivera from
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`making, using, selling, offering for sale, or importing the accused Curos Tips device (Model
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`X13) pending a final determination in the case. Catheter Connections now contends that Ivera is
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`selling a new model (Rev G) of its accused Curos Tips device that is not colorably different from
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`Model X13. Catheter Connections has filed a motion for an order to show cause why Ivera
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`should not be held in contempt for violating the Preliminary Injunction Order. (See Docket No.
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`The patents at issue in this case include U.S. Patent 8,647,308 B2 (‘308 patent) and U.S.
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`Patent 8,641,681 B2 (‘681 patent). Catheter Connections’ request for a finding of contempt
`focuses on infringement of Claim 1 of the ‘308 Patent.
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`CCI 2014
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`Case 2:14-cv-00070-TC Document 277 Filed 09/11/14 Page 2 of 10
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`184.)
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`The court held a hearing on the motion about whether Ivera, by manufacturing and selling
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`the Rev G device, has violated the Preliminary Injunction. Based on the evidence before the
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`court (including a visual examination of the Model X13 and Rev G caps) and the arguments
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`presented by the parties, the court concludes that Ivera’s Model Rev G device is not colorably
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`different from Ivera’s Model X13 device and so Ivera has violated the Preliminary Injunction
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`Order. Accordingly, the court finds that Ivera is in contempt and orders Ivera to cure its
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`contempt by completing the actions described at the conclusion of this order.
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`FINDINGS OF FACT
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`On April 14, 2014, the court found, after an evidentiary hearing, briefing, and arguments,
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`that Catheter Connections had shown that the four preliminary injunction factors weighed heavily
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`and compellingly in Catheter Connections’ favor. (See Apr. 14, 2014 Sealed Order & Mem.
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`Decision (Docket No. 83).) The subsequent Preliminary Injunction, dated April 24, 2014, orders
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`as follows:
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`Ivera, and its officers, agents, servants, employees, attorneys, and other persons
`who are in active concert or participation with Ivera, who receive actual notice of
`this Order by personal service or otherwise, are immediately enjoined during the
`pendency of this litigation from making, using, selling, offering for sale, or
`importing into the United States Ivera's accused Curos Tips™ or any device no
`more than colorably different from Ivera’s accused Curos Tips™, pending entry
`of a final judgment in this action.
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`(Apr. 24, 2014 Prelim. Inj. Order (Docket No. 98) at 2-3 (emphases added).)
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`Before the injunction was entered, the court held a Markman hearing to construe the six
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`disputed terms of the asserted claims and subsequently issued a claim construction for, among
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`other claims, Claim 1 of the ‘308 patent. (See Sealed Order & Mem. Decision (Docket No. 83)
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`(granting Motion for Preliminary Injunction) at pp. 7-14.) In the order granting Catheter
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`Connections’ Motion for Preliminary Injunction, the court included its claim construction and
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`held that Curos Tips Model X13 likely infringes claim 1 of the ‘308 patent. (Catheter
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`Connections’ contempt motion focuses only on Claim 1 of the ‘308 patent.) The court construed
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`Claim1 as follows (the disputed term is in bold and the underlined phrase is the language at issue
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`in the contempt proceedings here):
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`A male-disinfecting cap for disinfecting a male luer-lock connector of the type
`including a post having a lumen through which fluid flows and an internally
`helically threaded skirt surrounding the post, the cap comprising: a cap body
`having an outer surface defining a gripping portion and only one receiving portion
`and defining a longitudinal axis, the receiving portion defining one chamber
`having a single opening, said opening being in the receiving portion, into which
`the post of the male luer-lock connector can be received, wherein an exterior
`surface of the receiving portion near the opening of the chamber fits within the
`skirt of the male luer-lock connector when the post is received into the single
`opening of the chamber, the exterior surface of the receiving portion having
`protrusions shaped to engage helical threads of the internally helically
`threaded skirt; the chamber defining an interior portion extending within the
`gripping portion of the cap body, wherein the gripping portion extends the cap
`body longitudinally beyond the skirt of the male-luer lock connector when the
`post is received into the chamber; and the gripping portion comprising at least one
`recess having a length and depth, wherein the depth varie[s] monotonically
`along the length of the recess; and an antiseptic agent disposed in the chamber.
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`(Id. at 9 (emphases added).) The parties, during the claim construction process, agreed that the
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`term “varie[s] monotonically” means: “Varying in such a way that it either: (i) decreases or stays
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`the same and never increases, or (ii) increases or stays the same and never decreases,” along the
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`length of the recess. (Joint Claim Construction & Prehearing Statement (Docket No. 41) at 3.)
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`The court defined “recess” as “a cleft or hollow made from either adding or removing material.”
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`(Sealed Order & Mem. Decision (Docket No. 83) at 15.)
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`When Catheter Connections filed its lawsuit, Ivera “began to analyze the asserted patents
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`Case 2:14-cv-00070-TC Document 277 Filed 09/11/14 Page 4 of 10
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`and evaluate potential design arounds for the ‘accused Curos Tips™’ product.” (Decl. of Bob
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`Rogers (Docket No. 142) ¶ 5.) When the motion for preliminary injunction was filed, Ivera
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`“quickly began developing concepts for potential design arounds, and evaluating and testing the
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`most promising.” (Id. ¶ 7.) After the court issued the injunction, Ivera withdrew the accused
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`infringing device—Curos Tips Model X13—from the market. Then, a day after the court issued
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`the Preliminary Injunction, Ivera announced in a press release that it was launching a new version
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`(Model Rev G) of the Curos Tips device. Ivera actively promoted the redesigned Curos Tips
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`product on its website, directly to customers, and at trade shows using the same packaging,
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`literature, and images that it had used for the enjoined Curos Tips device. Ivera began shipping
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`its redesigned Rev G Curos Tips device during the week of May 12, 2014.
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`Catheter Connections, concerned about Ivera’s new product, obtained samples and
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`engineering drawings of the Rev G model. It conducted testing to compare the Rev G model to
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`the X13 model. Both models have six recesses on the tip. The recesses in Model X13 are
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`smooth, whereas the Rev G cap contains two very small bumps in each of the six recesses. That
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`is the only difference between the two models. The court must now determine whether the
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`change (the addition of the bumps) makes the Rev G more than colorably different from the X13.
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`During the court’s hearing on the motion for an order to show cause, Ivera told the court
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`that it had since re-designed the device and was no longer selling the Rev G model. Ivera did say
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`that some hospitals, and Ivera’s distributors, had the Rev G product, but that it was not longer
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`being marketed, sold or shipped. Nevertheless, Catheter Connections rightfully seeks an order
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`from the court to remedy any harm to Catheter Connections. (Moreover, the court has a strong
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`interest in maintaining the integrity of its orders.) Specifically, Catheter Connections asks the
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`Case 2:14-cv-00070-TC Document 277 Filed 09/11/14 Page 5 of 10
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`court to find Ivera in contempt for manufacturing and selling the Rev G model and to order Ivera
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`to recall all of the Rev G caps from Ivera’s distributors and pay Catheter Connections damages
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`(lost profits) and attorneys’ fees and costs associated with Ivera’s violation of the Preliminary
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`Injunction.
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`CONCLUSIONS OF LAW
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`The Court has inherent authority to enforce its own injunction. TiVo Inc. v. EchoStar
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`Corp., 646 F.3d 869, 888 (Fed. Cir. 2011). As stated in the Preliminary Injunction Order, the
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`court may find Ivera in contempt if the Curos Tips Rev G model is no more than colorably
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`different from the enjoined Curos Tips Model X13. (Prelim. Inj. at 2-3.) “[W]hether a
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`redesigned product is ‘colorably different’ from, or a ‘colorable imitation’ of, the previously
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`enjoined products is directly relevant to the contempt standard in patent law.” Aevoe Corp. v.
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`AE Tech Co., Ltd., 727 F.3d 1375, 1382 (Fed. Cir. 2013). Good faith intent has no bearing on
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`the determination of whether a party has acted in violation of the preliminary injunction. Even if
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`Ivera had a good faith intent to design around the patents, that does not insulate it from contempt
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`proceedings. TiVo Inc., 646 F.3d at 880 (Fed. Cir. 2011) (“A lack of intent to violate an
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`injunction alone cannot save an infringer from a finding of contempt.”).
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`The only element of claim 1 now at issue in the court’s contempt and infringement
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`analysis is the “depth varies monotonically” element. As noted above, the term “varie[s]
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`monotonically” means: “Varying in such a way that it either: (i) decreases or stays the same and
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`never increases, or (ii) increases or stays the same and never decreases,” along the length of the
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`recess. (Joint Claim Construction & Prehearing Statement (Docket No. 41) at 3.)
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`Catheter Connections submits the Declaration of its expert, William Durgin, Ph.D., in
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`support of its claim that the addition of two bumps to the recesses of X13 to create Rev G does
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`not eliminate the inherent feature of the patented device—i.e., that the gripping portion of the
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`device comprises at least one recess having a length and depth, wherein the depth varies
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`monotonically along the length of the recess. Testing done at Dr. Durgin’s direction, as
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`described in his declaration, demonstrates that at least one of the six recesses of the gripping
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`portion of the Rev G tip does vary monotonically despite the existence of the two bumps.
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`As Dr. Durgin notes, the only relevant difference between the two models is a pair of very
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`small “bumps” added to each of the six recesses of the gripping portion of the Rev G male cap.
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`(See Fig. 1 and Fig. 2 in Pl.’s Mot. for Order to Show Cause (Docket No. 184).) The plastic cap,
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`by design, is relatively small, but the bumps in the recesses are barely perceptible, especially to
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`the naked eye (the court visually inspected and compared the two models). Catheter
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`Connections’ expert measured the bumps, and the elevation of the bumps is approximately 0.002
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`inches. (Decl. of William E. Durgin, Ph.D. (Docket No. 185) ¶ 12.) He described the height of
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`the bumps as less than the thickness of a sheet of copy paper. (June 11, 2014 Dep. of William E.
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`Durgin, Ph.D. at p. 45 ll. 7-10, p. 90 ll. 3-5.) 4
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`Ivera’s expert, Karl R. Leinsing, MSME, PE, took issue with Catheter Connections’
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`emphasis on the size of the bumps. “These bumps are substantial in height relative to the depth
`of the recesses, with their height approximately 14% ((0.0038/0.027) x 100) of the depth of the
`recess itself, thus they materially reduce the depth of the recess at those points.” (Decl. of Karl
`R. Leinsing, MSME, PE (Docket No. 206) ¶ 8.) First, the court does not find that a 14%
`difference in depth is material. Second, the bumps are barely perceptible.
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`During the contempt hearing, the parties presented samples to the court for comparison.
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`Dr. Durgin noted in his Rebuttal Declaration that “the testing, while it was helpful to
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`confirm my own observations, was not even necessary for me to reach the conclusion that the
`Rev G is no more than colorably different from the X13/Curos Tips product that is the subject of
`this Court’s injunction.” (Rebuttal Decl. of William E. Durgin, Ph.D. (Docket No. 210) ¶ 4.)
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`In his testing, he took a sample Rev G tip to the Surface Analytical Lab at the University
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`of Utah College of Engineering (the “Nanofab Lab”) to measure the length and depth of the
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`recesses of the gripping portion of the Rev G. That testing confirmed that the Rev G model
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`satisfies each limitation of Claim 1 of the ‘308 patent.
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`Within each recess of the Rev G cap, there is a space between the outer edge of each of
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`the bumps and the rib that defines the boundary of the recess itself. (See Fig. 2 of Durgin Decl.)
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`Because nothing in Claim 1 of the ‘308 patent requires the depth of the recess to be measured at
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`the centerline or the deepest portion (nadir) of the recess, he directed the Nanofab Lab to measure
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`the depth of the Rev G recess along a longitudinal line running the length of the recess adjacent
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`to the bumps. The measurements, represented in graphs, show that the depths of the recesses
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`varied in a continuous, monotonic fashion along the length of each recess. (See Figs. 3-8 of
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`Durgin Decl.)
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`Ivera does not dispute that the measurements along the line chosen by Dr. Durgin did
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`show a depth that varied monotonically. But Ivera contends that when the depth of the recess is
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`measured at any point over the bumps, the depth does not vary monotonically and so the Rev G
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`is more than colorably different from the X13. Ivera’s expert, Karl R. Leinsing, states that:
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`[P]rogressing along the “length of the recess” from its beginning toward the
`closed end of the cap, prior to [addition of] the bumps, [measurements showed
`that] the depth of the recess increases. At the first bump the depth decreases until
`the top of the bump is reached, then increases to the bottom of the bump and
`continues increasing to the second bump. The depth of the “recess” then
`decreases again until the top of the second bump is reached. Thus, the two bumps
`alter the depth of the “recess” along its length such that the depth varies non-
`monotonically – increasing, then decreasing, then increasing, then decreasing
`again.
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`(Decl. of Karl R. Leinsing, MSME, PE (Docket No. 206) ¶ 9 (emphasis added).) Ivera contends
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`that Dr. Durgin’s measurement of a line running along the sidewall of the Rev G rather than the
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`bottom of the recess (in essence, down the center of the recess) does not actually reflect the depth
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`of the recess. Mr. Leinsing contends that Dr. Durgin, by measuring the sidewall, “is not
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`evaluating the ‘depth of the recess,’ [but instead] is simply choosing a random series of points” to
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`measure. (Id. ¶ 15.) Mr. Leinsing analogizes the measurement of depth to measuring the depth
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`of a pool, stating that,
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`[a]s a person of ordinary skill in the art, I understand the “depth” of the recess to
`be the difference in height between the crest or top of the rib and the bottom of the
`recess. This is the common understanding of the term “depth” in this context, as
`one would describe the depth of a pool as the different in height between the
`waterline and the bottom of the pool.
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`(Id. ¶ 14.)
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`The court is not convinced by Mr. Leinsing’s pool depth analogy. As Dr. Durgin notes,
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`“if Ivera’s position is that the depth must be measured along the deepest portion of the recess,
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`then a line running either immediately adjacent to the bumps (Fig. 1 [of Dr. Durgin’s Rebuttal
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`Declaration]) or a line running around the bumps is the most logical path for measurement. (See
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`Fig. 2 [of his Rebuttal Declaration]).” (Rebuttal Decl. of William E. Durgin, Ph.D. (Docket No.
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`210) ¶ 9 (emphasis in original).) Dr. Durgin more properly applies the analogy of measuring the
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`depth of a swimming pool:
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`The question of depth can be illustrated using a swimming pool or a
`navigational chart analogy. While a typical pool has a smooth bottom and sides,
`the depth of many or most pools varies, usually monotonically, as you move from
`deep parts of the pool to shallow parts. But there are several “paths” you can
`follow along the bottom and side surfaces of the swimming pool and still show
`monotonically varying changes in the depth of the pool.
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`Similarly, marine navigational charts show many different numbers for
`depth because the contours of the sea floor vary. One would never measure the
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`Case 2:14-cv-00070-TC Document 277 Filed 09/11/14 Page 9 of 10
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`depth of the ocean by starting underneath a rock formation. The depth is thus
`dependent on where you measure it.
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`(Id. ¶¶ 11-12 (emphasis in original).)
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`By suggesting that the measurement must be at the centerline of the recess, Ivera is
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`attempting to add a limitation to Claim 1 of the ‘308 Patent. The court will not allow Ivera to do
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`so because that would require the court to modify its construction of Claim 1.
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`Here, the addition of two bumps to the recesses of the Curos Tips does not eliminate an
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`inherent feature of Claim 1 of the ‘308 patent. See SunTiger, Inc. v. Scientific Research Funding
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`Grp., 189 F.3d 1327, 1336 (Fed. Cir. 1999) (One cannot avoid infringement by adding elements
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`if each element recited in the claims is found in the accused device). Ivera’s minor modification
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`is not sufficient to avoid violation of the Preliminary Injunction.
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`CONCLUSION
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`Ivera’s addition of two bumps to the surface of the recesses of the enjoined Curos Tips
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`device does not eliminate any inherent feature of claim 1 in the ‘308 Patent. Accordingly, the
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`court finds that Rev G is not more than colorably different from the enjoined Curos Tips device.
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`By manufacturing and selling the Rev G model, Ivera has violated the court’s Preliminary
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`Injunction and is in contempt of court. To cure its contempt, Ivera must do each of the
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`following:
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`1.
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`Immediately recall all of the Rev G caps from all of the distributors to whom Ivera
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`sent the Rev G caps. No later than 30 days from the date of this order, Ivera must submit a sworn
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`statement by a representative of the company indicating that the recall was successfully
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`completed.
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`2.
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`Pay Catheter Connections the amount of lost profits caused by Ivera’s sales of the
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`Rev G caps. The amount of lost profits will be determined by the court after review of
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`documentation produced by Catheter Connections to the court.
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`3.
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`Pay Catheter Connections its reasonable attorneys’ fees and costs associated with
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`prosecuting its motion for an order to show cause why Ivera should not be held in contempt.
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`Such fees and costs will be determined by the court after review of documentation produced by
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`Catheter Connections to the court.
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`4.
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`Provide proof to the court of complete compliance with this order no later than 30
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`days after the date the court determines the amount of damages, fees, and costs Ivera must pay to
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`Catheter Connections. At that point, the court will determine whether Ivera has cured itself of
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`contempt.
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`SO ORDERED this 11th day of September, 2014.
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`BY THE COURT:
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`TENA CAMPBELL
`U.S. District Court Judge
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