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Cayenne Medical Inc. v. Medshape Inc.

United States District Court, D. Arizona

May 6, 2016

CAYENNE MEDICAL, INC., Plaintiff,
v.
MEDSHAPE, INC., a Georgia corporation, KURT JACOBUS, KEN GALL, TIMOTHY NASH, AND JOSHUA RAY, Defendants.

ORDER

H. Russel Holland United States District Judge

Motion for Partial Summary Judgment

Defendant moves for summary judgment that Claims 6-11 and 13 of the ‘294 patent are invalid.[1] This motion is opposed.[2] Oral argument was requested and has been heard.

Facts

Plaintiff Cayenne Medical, Inc. has alleged that defendant MedShape, Inc. is infringing Claims 6-11, 13, and 16-18 of U.S. Patent No. 8, 435, 294. The ‘294 patent is directed to methods and devices for attaching soft tissue to bone.

Claim 6 is an independent claim. Claims 7-11 and 13 are dependent on Claim 6 and thus include all claim limitations cited in Claim 6. Claim 6 is an apparatus claim and reads:

A material fixation system, comprising an implant which is placeable in a space defined by bone, said implant comprising:
a body having a longitudinal axis, a distal end, and proximal end;
a first member on said body which is movably expandable outwardly;
a second member on said body which is disposed axially from said first member and is also movably expandable outwardly, said second member being of a substantially different construction than said first member;
a distal end of said body comprising a space for receiving soft tissue therethrough, said space being defined by surfaces of said body which are oriented both generally parallel to said longitudinal axis and generally transverse to said longitudinal axis; and
a deployment device which is movable in a generally axial direction to deploy at least one of said first and second members.[3]

During the prosecution of the ‘294 patent, the PTO examiner rejected the claims in view of a patent to Levy and others.[4] To overcome the rejection, the inventors amended what became Claim 6 to include the phrase “substantially different construction.”[5] The inventors told the Examiner that

[t]he claim has been amended to now recite that the recited second member is of a substantially different construction than the recited first member.... [B]oth of the expandable members 210 of Levy are shown and disclosed as having a substantially identical construction, [6] whereas the claim now requires the second recited ...

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