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Anticancer, Inc., A California v. Cellsight Technologies

July 24, 2012

ANTICANCER, INC., A CALIFORNIA
CORPORATION,
PLAINTIFF,
v.
CELLSIGHT TECHNOLOGIES, INC., A DELAWARE CORPORATION; AND DOES 1--50,
DEFENDANT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER GRANTING IN PART PARTIAL SUMMARY JUDGMENT AND DENYING IN PART DEFENDANT'S MOTION FOR (ECF No. 36)

Presently before the Court is Defendant CellSight Technologies, Inc.'s ("CellSight") Motion for Partial Summary Judgment. (MSJ, ECF No. 36) Also before the Court are Plaintiff AntiCancer, Inc.'s ("AntiCancer") response in opposition, (Resp. in Opp'n, ECF No. 43), and CellSight's reply in support, (Reply in Supp., ECF No. 45). The Court heard oral argument on July 16, 2012, and the matter was thereafter taken under submission. Having considered the parties' arguments, the evidence, and the law, the Court GRANTS IN PART AND DENIES IN PART CellSight's motion.

BACKGROUND

On December 8, 2010, AntiCancer filed this action against CellSight, asserting the following claims: (1) infringement of U.S. Patent No. 6,759,038 ("the '038 patent") and U.S. Patent No. 6,649,159 ("the '159 patent"); (2) copyright infringement; (3) violation of the Lanham Act; and (4) common law and statutory unfair competition. (Compl., ECF No. 1) CellSight answered on January 18, 2011, (Answer, ECF No. 5), and the Court adopted the parties' agreed- upon claim constructions on November 16, 2011, (Order, Nov. 16 2011, ECF No. 20). Then, on May 17, 2012, CellSight filed the instant motion for partial summary judgment. (MSJ, ECF No. 36)

1. Patent Infringement Claims

AntiCancer contends that CellSight has infringed and is infringing the '159 patent, titled "Whole-Body Optical Imaging of Gene Expression and Uses Thereof," '159 patent, at [54], and the '038 patent, titled "Metastasis Models Using Green Fluorescent Protein (GFP) as a Marker," '038 patent, at [54].

A. The '159 Patent

The '159 patent relates to "the whole-body external optical imaging of gene expression." '159 patent, at [57]. Relevant here, Claim 1 of the '159 patent recites "[a] method to monitor the ability of a promoter to promote expression in an animal of an endogenous gene*fn1 that is controlled by said promoter . . . . ." '159 patent col.24 ll.44--46. The method comprises two elements:

! Element 1: "[D]elivering, to an animal, cells containing a nucleic acid encoding a fluorophore*fn2 operatively linked to the promoter of said endogenous gene whose ability to promote expression is to be analyzed." '159 patent col.24 ll.47--50.

! Element 2: "[O]bserving the presence, absence or intensity of the fluorescence*fn3 generated by said fluorophore at various locations in said animal by whole-body external fluorescent optical imaging.*fn4 " '159 patent col.24 ll.52--56.

B. The '038 Patent

The '038 patent covers "[a] method to follow the progression of metastasis of a primary tumor . . . ." '038 patent, at [57]. Relevant here, Claim 1 of the '038 patent recites "[a] method to evaluate a candidate protocol or drug for the inhibition of metastasis of a primary tumor . . . ." '038 patent col.13 ll.58--59. The claim requires "monitoring the progression of metastasis by observing the presence, absence or intensity of the fluorescence at various locations in the treated subject," '038 patent col.13 ll.65--67, and "monitoring the progression of metastasis in a control, which contains a similar tumor that expresses green fluorescent protein," '038 patent col. 14

ll.5--7.

Claim 5 of the '038 patent covers "[a] method to monitor metastasis of a primary tumor in a subject . . . which contains said primary tumor, and wherein said tumor stably expresses green fluorescent protein (GFP)*fn5 in cells of said tumor when said tumor metastasizes." '038 patent col.14 ll.37--41. The method of Claim 5 "comprises monitoring the progression of metastasis by observing the presence, absence or intensity of the fluorescence as a function of time at various locations in said subject wherein said subject is intact." '038 patent col.14 ll.46--49.

LEGAL STANDARD

Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where

(1) the moving party demonstrates the absence of a genuine issue of material fact and

(2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Material," for purposes of Rule 56, means that the fact, under governing substantive law, could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). For a dispute to be "genuine," a reasonable jury must be able to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. When ruling on a summary judgment motion, the court must view all inferences drawn from the ...


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