The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO EXCLUDE EXPERT TESTIMONY; GRANTING OCEAN SPRAY'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Trivitis, Inc. ("Trivitis") and Ocean Spray Cranberries, Inc. ("Ocean Spray") separately move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Ocean Spray also moves to exclude the expert testimony of Drake Larson and Dale Shellhamer. All motions are opposed. Having carefully considered the matters presented, appropriate legal authorities, the court record, and for the reasons stated below, the court grants the motion to exclude the expert testimony of Drake Larson and Dale Shellhamer, grants Ocean Spray's motion for summary judgment, denies Plaintiff's motion for summary judgment, and instructs the Clerk of Court to close the file.
On February 10, 2010, Trivitis commenced this federal question action alleging a single claim for patent infringement. Trivitis is the alleged owner of the Patent entitled "Catechin Multimers as Therapeutic Drug Delivery Agents," U.S. Patent No. 6,562,864 (the "'864 Patent" or the "Patent"). (Compl. ¶8; Ocean Spray Exh. A). Trivitis alleges that Ocean Spray is infringing its patent rights by making, using, offering to sell or selling "products that practice inventions claimed in the '864 Patent, including but not limited to, its CRANERGY Energy Juice Drink." (Compl. ¶10).
The Allegedly Infringing Product
Ocean Spray produces a drink called Cranergy that allegedly infringes claims 10 and 11 of the '864 patent. (Compl. ¶10; Trivitis Brief at p.2:3-9). Cranergy is a cranberry juice drink "enhanced with natural caffeine from green tea extract and added B Vitamins." Http:""www.oceanspray.com/products/Cranergy. Aspx.. The drink is marketed as a "naturally energizing juice drink" that provides a "little help to get through your busy day." Id.
At issue are Claims 10 and 11 of the Patent: Claim 10. A therapeutic composition comprising a bioactive agent complexed with a carrier agent, wherein said bioactive agent is cationic or nucleophilic and said carrier agent comprises a catechin multimer.
Claim 11. The composition of claim 10, wherein said catechin multimer comprises a substituted catechin multimer.
On August 18, 2011 the court issued an order construing five disputed terms of the '864 Patent. The court adopted the following constructions.
Cationic: "positively charged, electron accepting molecule that forms a bond to its reactive partner."
Nucleophilic: "negatively charged, electron donating molecule that forms a bond to its reaction partner."
Catechin: "a molecule with the following formula: [followed by a diagramed molecule, Patent Col. 5:8-17]."
Multimer: "multivalent or multimeric forms of the compounds of interest made by linking multiple copies (two or more) of a compound (namely catechin) to each other and depicted as [followed by a diagram, Patent Col. 4:19-34.]."
Complexed: "the bioactive agent is bound (an affinity or attraction of varying degree) to the carrier agent sufficient for the delivery of the bioactive agent to target sites."
The Infringement Contentions
In its infringement contentions, Trivitis alleges that Cranergy's green tea extract contains epigallocatechin gallate, the "catechin multimer," and Niacin (Vitamin B3), the "bioactive agent." According to the contentions, "Niacin will readily 'bind' and/or 'coordinate' with the catechin multimers of the green tea ...