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I-Flow Corp. v. Apex Medical Technologies

January 12, 2010

I-FLOW CORPORATION, A DELAWARE CORPORATION, PLAINTIFF,
v.
APEX MEDICAL TECHNOLOGIES, INC., A CALIFORNIA CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

AND ALL RELATED COUNTERCLAIMS.

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON INTERVENING RIGHTS [Docket No. 449]

This matter comes before the Court on Defendants' motion to recognize intervening rights under 35 U.S.C. §§ 252 and 307(b). Plaintiff filed an opposition to the motion. Reply briefs were not permitted. For the reasons set out below, the Court grants Defendants' motion.

I. FINDINGS OF FACT

1. United States Patent Number 5,284,481 ("the '481 Patent") issued on February 8, 1994. (Decl. of Boris Zelkind in Supp. of Pl.'s Opp'ns to Mots. (Zelkind Decl."), Ex. 17.)

2. Claim 1 of the '481 Patent provides:

A compact portable apparatus for dispensing a liquid under pressure at a substantially constant flow rate over a period of time comprising: an elongated generally cylindrical support member; elongated elastic sleeve means mounted and sealingly secured at fixed spaced longitudinal positions on said support member for defining a substantially zero non-pressurized volume pressure reservoir for holding a liquid in a pressurized state for dispensing therefrom; housing means comprising collapsible non-stretchable housing means for containing said support member and said pressure reservoir for enabling said pressure reservoir to expand naturally and for confining said reservoir to fill concentrically about said support member; inlet means for introducing a liquid into said elastic pressure reservoir; and outlet means for dispensing liquid from said pressure reservoir to a selected site. (Id. at 162.)

3. Claim 15 of the '481 Patent recites:

A compact collapsible infusion apparatus for dispensing a liquid under pressure at a predetermined substantially constant flow rate over a period of time comprising: an elongated generally cylindrical support member having inlet means including an inlet port in one end of said member, and outlet means including an outlet port in the other end of said member; elongated elastic sleeve means mounted in non-stretched surface contact and sealingly secured at fixed space longitudinal positions on said support member for defining a substantially zero non-pressurized volume pressure reservoir for holding a liquid in a pressurized state for dispensing therefrom; first housing means including a collapsible shell enclosing said support member and said pressure reservoir, said housing having a size and shape for enabling said pressure reservoir to expand naturally and for confining said reservoir to fill concentrically about said support member; inlet means in one end of said support member for introducing a liquid into said elastic pressure reservoir; and outlet means in the other end of said support member for dispensing liquid from said pressure reservoir to a selected site.

(Id. at 163.)

4. On November 12, 2007, Defendants filed an ex parte request for reexamination of the '481 Patent with the Patent and Trademark Office ("PTO").

5. The PTO granted Defendants' request for reexamination on January 16, 2008.

6. On September 29, 2008, the PTO issued an Office Action rejecting all claims of the '481 Patent as anticipated by European Patent Application Number 90311152.4 ("Block Medical").*fn1 (Decl. of Trevor Coddington in Supp. of Mots. ("Coddington Decl."), Ex. L.)

7. Plaintiff's counsel thereafter participated in an interview with three examiners from the PTO concerning the ...


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