Case 1:O1—cv—O2015—RJL Document 107 Filed 03/31/06 Page 1 of 15
`Case 1:01-cv-02015-RJL Document 107 Filed 03/31/06 Page 1 of 15
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF COLUMBIA
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`SCIMED LIFE SYSTEMS, INC.,
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`Plaintiff and Counterclaim-Defendant ,
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`V0
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`MEDTRONIC VASCULAR, INC.,
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`Defendant and Counterclaim-Plaintiff,
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`and
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`ERIC C. MARTIN,
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`Defendant and Counterclaim-Defendant.
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`\-./\../\_/&/‘u./\.—v’\—/\—"-—/\—r’\—/\—/\—/\—n/‘-u.dH./\u/
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`Civil Case No. 01-2015 (RJL)
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`5%’
`MEMORANDUM OPINION
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`(Mmchy, 2006) [# 76, 100, 102, 103]
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`Plaintiff, Scimed Life Systems, Inc.
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`(“Scimed”), brought
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`this action against
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`defendants, Medtronic Vascular, Inc. (“Medtronic”) and Eric C. Martin, underTitle 35 ofthe
`United States Code Section 146, challenging the Final Decision and Judgment ofthe Board
`ofPatent Appeals and Interferences (the "Board") ofthe United States Patent and Trademark
`Office ("USPTO") regarding Patent Interference No. 104,192 between certain patent
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`applications for an apparatus for reinforcing a bifurcated lumen. Presently before the Court
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`are Medtronic’s Motion for Summary Judgment, Seimed’s First and Second Motions for
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`Summary Judgment, and Medtronic’s Motion to Compel Production of Documents and
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`1
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`ENDOLOGIX, INC
`EX. 1018
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`Things. After due consideration of the parties’ submissions, the relevant law and the entire
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`record herein, the Court finds that the Board did not erroneously affirm its Grant of the
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`Fogarty er at]. United States Patent Application Serial No. 08/463,836 (now owned by
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`Medtronic) Motion 12 in its July 27, 2001 Final Decision and Judgment. Accordingly, this
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`Court affirms the Board’s Final Decision and Judgment and,
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`therefore, GRANTS
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`Medtronie’s Motion for Summary Judgment, DENIES Scimed’s First and Second Motions
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`for Summary Judgment, and DENIES AS MOOT Medtronic’s Motion to Compel Production
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`of Documents and Things.
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`I_.
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`BACKGROUND
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`Plaintiff Scimed and defendant/counterclaimant Medtronic are each assignees of
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`record oftwo different patent. applications for a bifurcated lumen invention.‘ Andrew Cragg
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`and Michael Dake (collectively referred to as party “Cragg” in the underlying proceedings
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`at the USPTO) filed an application with the USPTO regarding the bifurcated lumen
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`apparatus on June 5, 1995. The application was assigned the serial number 08/461,402 (the
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`“‘402 application”). Cragg and Dake assigned all rights in the ‘402 application to Boston
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`Scientific Technology, Inc., which later merged into plaintiff Scimed. Scimed is now the
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`present legal owner of the ‘402 application. Medtronic was assigned its rights in a patent
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`application for the same invention by Thomas J. Fogarty, Timothy J. Ryan, and Kirsten
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`Freislinger (collectively referred to as party “Fogarty” in the underlying proceedings at the
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`The “Background” section of this Memorandum Opinion has been partially adapted from this
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`Court’s earlier Memorandum Opinion in Scimed Life Systems, Inc. V. Medrronic Ave Inc. , 297 F. Supp.
`2d 4 (D.D.C. 2003).
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`USPTO). That application was also filed with the USPTO on June 5, 1995, and assigned the
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`serial number 08/463,836 (the “‘836 application”). Party Fogarty assigned its rights in the
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`‘S36 application to Medtronic Aneurx, Inc., which merged into Medtronic AVE, Inc. which
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`later became the defendant/counterclaimant Medtronic. Medtronic is now the legal owner
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`of the ‘E336 application. Defendant/counterclaim—defendant Eric Martin owns patent No.
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`5,575,817 (the “Martin” or “‘8 1 7 patent”), based on application 08/293,541, filed on August
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`19, 2004.
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`On April 23, 1998, the USPTO Board declared an interference between SciIned's
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`patent application (the “Cragg” or “‘402 application”), Medtronids patent application (the
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`“Fogarty” or “‘836 application”) and the Martin patent. This interference proceeding was
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`assigned Interference No. 104,192, and is referred to as the “‘ 192 interference.” On July 2,
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`1998, the Board set the following as the sole “count”3:
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`An apparatus for reinforcing a bifurcated lumen comprising:
`a first section, configured to be positioned within the lumen, comprising:
`an upper limb, configured to fit within the lumen upstream of the bifurcation;
`a first lower limb, configured to extend into the first leg of said bifurcation
`when said first section is positioned in the lumen, and
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`“The purpose of an interference proceeding is to resolve the question of priority of invention
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`when more than one applicant seeks a patent on substantially the same invention.” 3A-10 Donald S.
`Chisum, Chisum on Patents § 10.09[1] [a] (2006). This action was brought in federal Court pursuant to 35
`U.S.C. § 146, which allows a party dissatisfied with the decision of the Board in an interference to bring
`a civil action as long as the Board’s decision is not being appealed to the United States Court of Appeals
`for the Federal Circuit “and such appeal is pending or has been decided.” See 35 U.S.C. § 146.
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`“A count defines the interfering subject matter. In In re Van Germs (1993), the Federal Circuit
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`noted that (1) ‘[a]1though claims of one or more of the parties may be identical to the count of an
`interference, the count is not a claim to an invention,’ and (2) ‘ [t]he count of an interference is merely the
`Vehicle for contesting the priority of invention and determining what evidence is relevant to the issue of
`priority.” 3A—10 Donald S. Chisum, Chisum on Patents § 10.09[3] (2006).
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`3
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`a second lower limb, shorter that said first lower limb, and configured so that
`when said first section is positioned in the lumen, said second lower limb does
`not extend into a second leg of said bifurcation,
`and further comprising
`a second section configured to be positioned separately within the lumen and
`joined to said second lower limb ofthe first section, effectively extending said
`second lower limb into said second leg of said bifurcation.
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`Cragg et‘ al. 12. Martin 12. Fogarty er al., Patent Interference No. 104,192, Paper No. 187,
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`Final Decision and Judgment at 5-6 (United States Patent and Trademark Office, Board of
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`Patent Appeals and Inferences July 21, 2001)(“Board’ s Final Judgment”). The purpose ofthe
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`‘ 192 Interference was for the Board to determine who among the three parties had priority
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`of inventorship, and was, therefore, entitled to the invention defined by the count.
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`At the time of declaration of the interference, party Cragg was accorded by the
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`USPTO the benefit of the filing dates of two European patent applications (i.e. February 9
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`and June 10, 1994), which had been filed by a French Company known as Mintec SARL.
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`At the time of declaration of the interference, party Fogarty, on the other hand, was accorded
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`by the USPTO the benefit of the earlier filing date of U.S. patent application 08/255,681:
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`i.e. on June 8, 1994. Thus, at the start of the interference, party Cragg was designated the
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`“senior party,”4 on the basis of the accorded benefit date ofFebruary 9, 1994. On March 13 ,
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`2000, party Fogarty filed a preliminary motion attacking the benefit accorded party Cragg to
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`“In an interference proceeding, the first party to file is designated as the ‘senior party’ and all
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`other parties as ‘junior.’ The junior party bears the burden of going forward with evidence as to actual
`reduction to practice prior to the senior party's filing date or conception prior to the senior party's filing
`date plus continuous and reasonable diligence during the critical period. If the senior party desires to
`show a date of conception or reduction to practice prior to his filing date, he hears the burden of going
`forward with evidence.” - 3A—10 Donald S. Chisurn, Chisum on Patents § 10.03[1][c][ii] (2006).
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`4
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`I. the filing dates of the two European applications and sought to be made the senior party in
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`the interference. On April 7, 2000, the Board granted party Fogarty’s preliminary motion 12,
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`declaring party Fogarty the senior party in the interference and party Cragg and party Martin
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`as junior parties in the interference. Cmgg ez‘ al. v. Martin v. Fogarty ez‘ al., Patent
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`Interference No. 104,192, Paper No. 130, Decision on Party Cragg’s Motion to Correct the
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`Preliminary Statement and on Party Fogarty’s Preliminary Motion No. 12 at 7 (United States
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`‘Patent and Trademark Office, Board of Patent" Appeals and Inferences April 24,
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`2000)(“Deeision on Preliminary Motion No. 12”). In that same opinion, the Board denied
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`party Cragg’s motion to amend its preliminary statement to name Michael D. Dake and
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`Andrew H. Cragg as co-inventors of the party Cragg invention.
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`Id. at 7. Party Cragg
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`requested reconsideration ofthat decision claiming that the Board had erred in its ruling and
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`' claimed that Mintec filed the European applications as assignees of both Dake and Cragg,
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`the co—inVentors of the subj ect matter of the patent application.
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`On April 24, 2000, the Board issued a Decision on Reconsideration denying the
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`request for reconsideration on the basis that Dal<e’s assignment of his rights in the patent
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`application came after the filing of the European application and that 35 U.S.C. § 119 could
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`not be interpreted to allow Mintee the benefit of priority With this subsequent assignment of
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`' ‘rights. Cragg er al. v. Martin 12. Fogarly ea‘ al., Patent Interference No. 104,192, Paper No.
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`138, Decision on Reconsideration (United States Patent and Trademark Office, Board of
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`Patent Appeals and Inferences April 24, 2000)(“Board’s Decision on Reconsideration”). In
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`its decision, the Board interpreted Title 35 of the United States Code Section 119 to require
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`that “the previously filed foreign application must have been filed by the person or one who
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`was, at the time of filing of the previously filed foreign application, already a legal
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`representative or assign of that person.” Id. at 3. The Board went on to state that their
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`interpretation of Section 119 “is necessary to ensure a link between the presently involved
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`application and the earlier filed foreign application with respect to the particular inventor.
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`A contrary interpretation would cause entitlement to benefit to be negotiable as a commodity
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`between unrelated entities.” Id. In essence, the Board rejected party Cragg’s position on the
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`assignment of rights to the patent and stated:
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`We are unpersuaded that an assigmnent ofownership rights changes on whose
`behalf an application was previously already filed. It would appear that only
`filings subsequent to the assignment of rights from Michael D. Dake can be
`deemed as being executed or performed on his behalf.
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`Id. at 5. Party‘ Cragg requested a final hearing for review of the Board’s decision claiming
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`that the Board had erroneously interpreted Section 119 and that Dake and Cragg were co-
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`inventors and that Mintec SARL was the assignee of both Dake and Cragg for the subject
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`matter invention even though the assignments occurred after the European patent applications
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`were filed. See id at 11-23. On July 27, 2001, the Board issued its Final Decision and
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`Judgment. See Board’s Final Judgment.
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`In its Final Judgment, the Board adopted its earlier interpretation of 35 U.S.C.§ 119.
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`Id. at 9. The Board cited Vogel v. Jones, 486 F.2d 1068, 1072 (C.C.P.A. 1973), for the
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`proposition that “a foreign application made by the assignee of a U.S. applicant, on behalf
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`of one other that the United States inventor, is irrelevant to the rights of priority of the U.S.
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`inventor.” -Id. at 10. The Board stated that the “plain statutory language” of Section 119
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`does not put “an assignee in the same position as if it were a ‘legal representative’ or ‘assign’
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`ofthe inventor at a previous time when a foreign application for the same invention was filed
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`by that assignee.” Id. at 12. The Board found that Dake assigned his invention to Mintec,
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`Inc. more than two years after the filing of the two European patent applications. Id. at 11-
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`12. The Board went on to state, that even assuming that party Cragg’ s preliminary statement
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`identified both Cragg and Dake as co-inventors of the subject matter of the count, that fact
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`would not help party Cragg as “Cragg also did not assign his rights to Mintec, Inc. until
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`after” the two European patent applications were filed.
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`Id. at 20. The Board found that
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`“MINTEC SARL was not an assign of either Michael D. Dake nor Andrew H. Cragg when
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`it filed European applications EP944oo284.9 and EP944013069.” Id. For those reasons,
`and others, the Board found that there was no error in the granting of party Fogarty’s
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`preliminary motion 12. Id. at 23.
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`On September 25, 2001, Scimed filed this appeal under Title 35 of the United States
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`Code Section 146, seeking this Conrt’s review of the Board’s Final Decision and Judgment
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`in the ‘I92 Interference. The parties to this action entered into a stipulation and order
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`limiting the issues in this case. The stipulated issue to be resolved is:
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`Whether the Board erroneously affirmed its Grant ofF0garty er al. (Medtronic)
`Motion 12 in its July 27, 2001 Final Decision denying Cragg er al. (Scimed)
`benefit of the February 9, 1994 filing date of its European application No.
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`944002849 as a date ofinvention for the subject matter ofthe single count in
`Interference No. 104,192.
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`(See Stipulation and Order entered March 25, 2004, Dkt. 50.) On-July 22, 2005 , both parties
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`moved for summary judgment on this remaining issue and provided the Court with exhibits
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`supporting their positions.
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`_I_L
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`STANDARD OF REVIEW
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`Summary Judgment is appropriate when the pleadings and the record demonstrate that
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`("there is no genuine issue as to any material fact and that the moving party is entitled to a
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`' judgment as a matter of law." F-ed. R. Civ. P. 56(0); see also Celotex v. Catrett, 477 U.S.
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`317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine
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`' which facts are "material," a Court must look to the substantive law on which each claims
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`'
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`rests. Anderson 12. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one
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`Whose resolution could establish an element of a claim or defense and, therefore, affect the
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`outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. Additionally,
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`to be a genuine issue of fact, it must be supported by sufficient admissible evidence such that
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`I a reasonable trier of fact could find for the nonmovant. See Laningham v. United States
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`"Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
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`The moving party bears the initial burden of "identifying those portions of the
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`‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the
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`affidavits, if any,’ which it believes demonstrates the absence of a genuine issue of material
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`6' fact." See Celotex, 477 U.S. at 323. In order to prevail on its motion for summaryjudgment,
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`the rnovant must Show that the nonmovant "fai1[ed] to make a showing suffi cient to establish
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`the existence of an element essential to that party's case, and on which that party will bear
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`the burden of proof at trial." Id. at 322.
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`In opposing summary judgment,
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`the “nonmoving party [must] go beyond the
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`pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and
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`‘admissions on file,’ designate ‘specific facts showing that there is a genuine issue for tria .’”
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`Id. at 324. The Court must view the facts in the light most favorable to the nonmovant,
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`giving the nonmovant the benefit of all justifiable inferences derived from the evidence in
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`the record. Anderson, 477 U.S. at 255 (1986). The nonmovant,.however, must establish
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`more than "the mere existence of a scintilla of evidence" in support ofits position. Id. at 252.
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`In order for Scimed to prevail on summary judgment, Scimed must put forth evidence
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`and legal support that meets the standard of proof this Court is required to apply when
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`reviewing decisions of the Board of Patent Appeals and Interferences of the USPTO.
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`In
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`determining whether or not the Board erroneously affirmed its Grant of party Fogarty’s
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`preliminary motion 12 and, therefore, erroneously awarded priority for the subj ect matter of
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`the single count in the ‘ 192 Interference to Medtronic, this Court will apply the standard of
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`proof set forth in Morgan 12. Daniels, in that when a decision has been made by the Patent
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`Office in an action contesting priority of invention, “the decision there made must be
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`accepted as controlling upon that question of fact in any subsequent suit between the same
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`parties, unless the contrary is established by testimony which in character and amount carries
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`thorough conviction.” Morgan, 153 U.S. 120, 125 (1894) (emphasis added) (determining
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`the standard ofreview for a Patent Office decision when no additional evidence was put forth
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`to the Circuit Court). Our Circuit Court, in United States v. Szuecs, 240 F.2d 886 (D.C. Cir.
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`1957), upheld the Morgan standard of proof that must be applied by a District Court when
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`reviewing a decision of the Patent Office pursuant to 35 U.S.C. § 146.
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`“To reach a
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`conclusion contrary to that of the Patent Office,” the Morgan standard requires the evidence
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`to carry “‘thorough conviction.” Szuecs, 240 F.2d at 887 (citing Morgan, 153 U.S. at 125)
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`(reversing and rernanding the case to the District Court to apply the correct standard of
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`proof).
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`Another District Court Judge of this Court reaffirmed the application of Morgan in
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`reviewing Patent Office cases under 35 U.S.C. § 146. Anderson v. Anderson, 403 F. Supp.
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`834, 844-45 (D.D.C. 1975) (affirming the decision ofthe Board ofPatent Interferences after
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`reviewing the full administrative record and hearing additional oral testimony), a)j”d, 543
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`F.2d 1389 (D.C. Cir. Nov. 11, 1976).
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`In Anderson, Judge John H. Pratt found that the
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`‘fPatent Office is entitled to a presumption of correctness and regularity.” Id. at 844 (citing
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`Vogel V. Jones, 346 F. Supp. 1005 (D.D.C. 1972). Judge Pratt went on to reiterate that the
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`District Court could not overturn the Board’s decision unless the evidence put forth by the
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`movant carried “thorough conviction,” and “[t]he ‘thorough conviction’ standard imposes
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`a heavy burden on plaintiffs in an action under 35 U.S.C. § 146,” and that “[a] mere
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`preponderance of the evidence is not enough to justify reversing the Patent Office.” Id. at
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`10
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`845. For the following reasons, the Court finds that the plaintiff has failed to meet its heavy
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`burden, and concludes that the Board did not err in its interpretation of Section 119.
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`_I_1_1_, ANALYSIS
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`A.
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`Inter retation 0 35 U.S.C.
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`119
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`In the Board’s Final Judgment, it reaffirmed its earlier decision that the “plain
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`statutory language” of Section 119 requires that the person who filed the foreign patent
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`application must have been a legal representative or assign of the person who filed the patent
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`application in the United States at the time that the foreign patent application was filed?
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`Board’s Final Judgment 9-10. The pertinent part of Section 119 reads:
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`(a) An application for patent for an invention filed in this country by any
`person‘ who has, or Whose legal representatives or assigns have, previously
`regularly filed an application for a patent for the same invention in a foreign
`country which affords similar privileges in the case of applications filed in the
`United States or to citizens of the United States, or in a WTO member country,
`shall" have the same effect as the same application would have if ‘filed in this
`country on the date on which the application for patent for the same invention
`Was firstfiled in such foreign country.
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`35 U.S.C. § l19(a). The Board’s interpretation of Section 119 is supported by Vogel v.
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`Jones, 486 F.2d 1068 (C.C.P.A. 1973). See Board’s Final Decision 10-11.
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`In Vogel, the
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`Court of Customs and Patent Appeal, the predecessor to the current Court ofAppeals for the
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`Federal Circuit, read Section 119 to mean “that an applicant for a United States patent can
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`rely for priority on the ‘first filed’ application by an assignee on his behalf.” 486 F.2d at
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`While counsel for Scimed is quick to point out its own grazrnmatical analysis of Section 119
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`without citing to any grammar reference guide, the Court notes that it is quite capable of reading the
`statute, interpreting the language of the statute, researching the case law pertaining to the statute and
`-applying that law to the present action.
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`11
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`1072. In order for the foreign patent application to be filed on behalf of the United States
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`applicant, the person filing the foreign application mustbe an assignee orilegal representative
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`at the time that the foreign application was filed. Id. If the foreign applicant was allowed
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`to become the legal representative or assign of the United States applicant after the foreign
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`application was filed, it would be impossible for the foreign application to have been filed
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`on the behalfof the United States applicant. If the Board or this Court held otherwise, the
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`right of priority could be, as the Board noted, traded or sold as a commodity to the highest
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`bidder. See Board’s Decision on Reconsideration 3; Board’s Final Decision 9. Therefore,
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`this Court does not find that the Board erred in its interpretation of Section 119 and Scimed
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`has neither cited any precedent or legislative history that would Warrant interpreting the
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`statute otherwise?
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`Sciined argues that the Board’s construction of Section 119 is inconsistent with the Paris
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`Convention for the Protection of Industrial Property, openedfor signature Mar. 20, 1883, as amended at
`Stockholm, July 14, 1967, 21 U.S.T. 1630, 828 U.N.T.S. 305 (“Paris Convention”), and asks this Court
`to find that the Board’s erroneously construed Section 119 as the Board’s construction is inconsistent
`with and violates Arti-cle 4 of the Paris Convention. While Section 119, and its predecessor R.S. 4887,
`were enacted in order to implement Article 4 of the Paris Convention, Vogel, 486 F.2d at 1072, the
`Board’s construction of Section 119, which this Court finds correct, does not violate and is not
`inconsistent with the Paris Convention. The Paris Convention is not self-executing and, therefore, the
`U.S. was free to implement the Paris Convention in the manner and form that Congress deemed
`appropriate. In re Dr. Matthais Ruth, 402 F.3d 1207, 1209-10 (Fed. Cir. 2005'). Congress executed
`Article 4 of the Paris Convention first with R.S. 48 87, and then with Section 119, and Section l_l9
`requires that in order to claim a right of'pri'ority'in a foreign application, the foreigi application must
`have been fileclfby the.U.S. applicant or a person or entity who was a legal representative or assign ofthe
`U.S. applicant a_t the "time that the foreign application was filed- The concern expressed by Scirned that
`upholding the Bo'ard?s- construction of Section 119 would have in foreign countries is conjecture and
`“based on pure speculation.” See Kawai v. Meflesrics, 480 F.2d 880, 889 (C.C.P.A. 1973).
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`12
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`Q Review of Board ’s Decision
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`Having found that the Board did not err in its reading and interpretation of Section
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`119," the question remains whether the Board erred in granting Medtronic’s preliminary
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`motion 12 seeking to deny Scimed the benefit of the filing date of its European patent
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`applications.
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`It did not. While a review by this Court of a Board’s Final Decision is a
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`“hybrid of an appeal and a trial de novo” because the Court considers evidence before the -
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`Board “as well as evidence that was not before the Board,” Winner Int? Royalty Corp. 12.
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`Wang, 202 F.3d 1340, 1345 (Fed. Cir. 2000) (quoting Esree Lauderfnc. 12. L ’Orea[, S.A., 129
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`F.3d 588, 592 (Fed. Cir. 1997)), it-nonetheless must treat the Board’s decision as controlling
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`“unless the contrary is established by testimony which in character and amount carries
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`thorough conviction.” Morgan, 153 U.S. at 125.
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`Scimed argues that the ‘284 European application Was either filed on Dake's behalf
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`-' “pursuant to the constructive trust imposed upon that application” when Mintec SARL filed
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`'1 :'the application, or a theory of an equitable assignment to party Cragg. (Scimed's Mem. of
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`' P&A in Opp'n to Medtronic's Mot. For Summ. J. 29, 35-36 (“Scimed's Opp'n”); Mem. of
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`P&A in Supp. of Scimed's Second Mot. For Summ J. That Scimed is Entitled to the Priority
`
`of Its EP ‘284 Application Even Under the Board's Construction of 35 U.S.C. § 119(a) ) 31-
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`33 (“Scimed's Second Mot. For Summ. J As this Court earlier recognized, “[t]he Federal
`
`' Circuit in Conservolite [Inc., v. Widmayer] held that a party's failure to raise the issue in a
`
`preliminary motion notoniy precluded it not from raising the matter at the final hearing, but
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`Case 1:01-cv-02015-RJL Document 107 Filed 03/31/06 Page 14 of 15
`Case 1:01—cv—02015—RJL Document 107 Filed 03/31/06 Page 14 of 15
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`also precluded district Court review.” Scimedlzfe Systems, Inc. v. Medz‘r0m'cA VE, Inc. , 297
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`F. Supp. 2d 4, 8 (D.D.C. 2003) (citing Conservolire, Inc. v. Widmayer, 21 F.3d 1098, 1102
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`(Fed. Cir. 1994)). The Federal Circuit has stated that “[i]n order for an issue to have been
`
`raised adequately so that it qualifies for consideration in a § 146 proceeding, the issue should
`
`I have been raised as specified in the PTO's interference rules, for example, through
`
`preliminary motions, motions to correct inventorship, miscellaneous motions, belated
`
`motions delayed for good cause, or oppositions to these motions.” Conservolite, 21 F.3d at
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`1 102. Therefore, Scimed is precluded from arguing that the Board erred in denying priority
`
`to Scirned either under the nevvfound constructive trust or equitable assignment theories
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`I advanced before this Court.
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`Thus, applying the Morgan standard ofproofto this review and not having conducted
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`" a de novo review as in Winner, the Court finds that Scimed has not presented sufficient
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`T evidence that Mintec SARL was either the legal representative or assign of Dake or Cragg
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`' at the time that the relevant European patent applications were filed. Accordingly, party
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`' Cragg and Scimed cannot claim the benefit of priority of the European patent applications.
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`I‘ "Therefore, this Court finds that the Board did not err in its granting of party Fogarty’s
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`'(Medtonic’s) motion No. 12 which denied Cragg er al. (Scimed) the benefit of the earlier
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`filing date ofEuropean application No. 944002849 and affirrns the Board’ s award ofpriority
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`_ to Fogarty er al. (Medtronic) in its July 27, 2001 Final Decision and Judgment.
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`Case 1:01-cv-02015-RJL Document 107 Filed 03/31/06 Page 15 of 15
`Case 1:01—cv—02015—RJL Document 107 Filed 03/31/06 Page 15 of 15
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`LL/_.
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`CONCLUSION
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`For the foregoing reasons, the Court GRANTS defendant and counterclaim-plaintiff
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`I Medtronic’s Motion for Summary Judgment [#100]; DENIES Plaintiff and counterclaim-
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`defendant Scimed’s First Motion for Summary Judgment [#102]; DENIES Plaintiff and
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`counterciaim—defendant Scimed’s- Second Motion for Summary Judgment [#103]; and
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`DENIES AS MOOT defendant and counterclaim-plaintiff Medtronic’s Motion to Compel
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`Production of Documents and Things [#76]. An order consistent with this decision
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`accompanies this Memorandum Opinion.
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`/.
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`RICHARD .
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`ON
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`United States District Judge
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