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Arbmetrics, LLC v. Dexcom Inc.

United States District Court, S.D. California

December 30, 2019

ARBMETRICS, LLC, an Ohio limited liability company, Plaintiff,
DEXCOM, INC., a Delaware corporation, Defendant.


          Hon. Janis L. Sammartino United States District Judge

         Presently before the Court are Plaintiff Arbmetrics, LLC's (“Pl.'s Br., ” ECF No. 66) and Defendant Dexcom, Inc.'s (“Def.'s Br., ” ECF No. 123) Opening Claim Construction Briefs, as well as each Party's response to the other's Opening Brief (“Def.'s Resp., ” ECF No. 68; “Pl.'s Resp., ” ECF No. 69). The parties dispute the meaning of seven terms claimed by U.S. Patent No. 6, 343, 225 (the “'225 Patent”). The Court heard oral argument, including tutorials from the Parties, on October 31, 2019. See ECF No. 77. Having carefully considered the Parties' arguments, the evidence, and the law, the Court rules as follows.


         “A determination of infringement involves a two-step analysis. ‘First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.'” Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1320 (Fed. Cir. 2003) (citing Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed. Cir. 1993)).

         The first step, commonly known as claim construction, is presently before the Court. Claim construction is a matter of law for the Court's determination. Markman v. Westview Instruments, Inc., 517 U.S. 370, 388 (1996) (“[J]udges, not juries, are the better suited to find the acquired meaning of patent terms.”).

         Words of a claim are “generally given their ordinary and customary meaning.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). “[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005). Because the inquiry into the meaning of claim terms is an objective one, “a court looks to those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004). “Those sources include the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.”[1] Id. (citing, inter alia, Vitronics, 90 F.3d at 1582-83).

         Claim construction begins with an analysis of the words of the claims themselves. See Scanner Techs. Corp. v. ICOS Vision Sys. Corp., 365 F.3d 1299, 1303 (Fed. Cir. 2004) (holding that claim construction “begins and ends” with claim's actual words). “In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words.” Phillips, 415 F.3d at 1314. The meaning of a claim term, however, as understood by ordinarily skilled artisans often is not immediately apparent. Id. In those situations, the court looks to “sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean.” Id. Or, when a patentee “chooses to be his own lexicographer and use terms in a manner other than their ordinary meaning, ” the court can use the patentee's meaning “as long as the special definition of the term is clearly stated in the patent specification or file history.” Vitronics, 90 F.3d at 1582.

         In examining the claims themselves, “the context in which a term is used can be highly instructive.” Phillips, 415 F.3d at 1314. Moreover, “[o]ther claims of the patent in question, both asserted and unasserted can . . . be valuable sources of enlightenment as to the meaning of a claim term.” Id. (citing Vitronics, 90 F.3d at 1582). “Because claim terms are normally used consistently throughout the patent, the usage of a term in one claim can often illuminate the meaning of the same term in other claims.” Id. Conversely, under the doctrine of claim differentiation, “‘different words or phrases used in separate claims are presumed to indicate that the claims have different meanings and scope.'” Andersen Corp. v. Fiber Composites, LLC, 474 F.3d 1361, 1369 (Fed. Cir. 2007) (quoting Karlin Tech., Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 971-72 (Fed. Cir. 1999)).

         “Importantly, the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.” Phillips, 415 F.3d at 1313. “The specification acts as a dictionary when it expressly defines terms used in the claims or when it defines them by implication.” Vitronics, 90 F.3d at 1582. “In addition to providing contemporaneous technological context for defining claim terms, the patent applicant may also define a claim term in the specification ‘in a manner inconsistent with its ordinary meaning.'” Metabolite Labs., Inc. v. Lab. Corp. of Am., 370 F.3d 1354, 1360 (Fed. Cir. 2004). “Usually, [the specification] is dispositive; it is the single best guide to the meaning of a disputed term.” Vitronics, 90 F.3d at 1582; accord Phillips, 415 F.3d at 1317 (“It is . . . entirely appropriate for a court, when conducting claim construction, to rely heavily on the written description for guidance as to the meaning of the claims.”).

         Patent claims should ordinarily be construed to encompass the preferred embodiments described in the specification, for “[a] claim construction that excludes a preferred embodiment . . . ‘is rarely, if ever, correct.'” SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d 1278, 1285 (Fed. Cir. 2005) (quoting Vitronics, 90 F.3d at 1583). A court should not, however, import limitations from the specification into the claims, Phillips, 415 F.3d at 1323 (“[A]lthough the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments.”), absent a specific reference in the claims themselves. Reinshaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998) (“[A] party wishing to use statements in the written description to confine or otherwise affect a patent's scope must, at the very least, point to a term or terms in the claim with which to draw in those statements.”).

         The patent's prosecution history, if in evidence, may also shed light on claim construction. Vitronics, 90 F.3d at 1582. “This history contains the complete record of all proceedings before the Patent and Trademark Office [(“PTO”)], including any express representations made by the applicant regarding scope of the claims.” Id. “Like the specification, the prosecution history provides evidence of how the PTO and the inventor understood the patent.” Phillips, 415 F.3d at 1317. Although the prosecution history “often lacks the clarity of the specification, ” it is nevertheless useful to show “how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be.” Id.

         “In most situations, an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term. In such circumstances, it is improper to rely on extrinsic evidence.” Vitronics, 90 F.3d at 1583. Thus, expert testimony on the proper construction of disputed claim terms “may only be relied upon if the patent documents, taken as a whole, are insufficient to enable the court to construe disputed claim terms.” Vitronics, 90 F.3d at 1585. But, Vitronics does not state a rule of admissibility, nor does it “prohibit courts from examining extrinsic evidence, even where the patent document is itself clear.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1308 (Fed. Cir. 1999). As the Federal Circuit has made clear:

[B]ecause extrinsic evidence can help educate the court regarding the field of the invention and can help the court determine what a person of ordinary skill in the art would understand claim terms to mean, it is permissible for the district court in its sound discretion to admit and use such evidence.

Phillips, 415 F.3d at 1319; accord Key Pharms. v. Hercon Labs. Corp., 161 F.3d 709, 716 (Fed. Cir. 1998) (“[T]rial courts generally can hear expert testimony for background and education on the technology implicated by the presented claim construction issues, and trial courts have broad discretion in this regard.”). The court is not “barred from considering any particular sources or required to analyze sources in any specific sequence, as long as those sources are not used to contradict claim meaning that is unambiguous in light of the intrinsic evidence.” Phillips, 415 F.3d at 1324 (emphasis added); see also Biagro W. Sales, Inc. v. Grow More, Inc., 423 F.3d 1296, 1302 (Fed. Cir. 2005) (“Extrinsic evidence, such as expert testimony, may be useful in claim construction, but it should be considered in the context of the intrinsic evidence.”).


         The parties dispute the meaning of seven claim terms in the '225 Patent. A brief description of the '225 patent is provided below, followed by an analysis of the claim terms.

         I. The '225 Patent

         The '225 Patent is directed to the creation of an implantable glucose sensor for use by patients with diabetes. The glucose sensor measures the amount of glucose present in the blood through an electrochemical reaction. The reaction is sparked by an enzyme that causes glucose to react with oxygen, the end product of the reaction being hydrogen peroxide. The amount of hydrogen peroxide created by the reaction is a direct measure of the glucose concentration in the sample. The hydrogen peroxide is then oxidized back to oxygen, which transfers electrons to an electrode, creating an electric current that can be measured. The electric current measured is directly proportional to the glucose concentration in the sample.

         A problem found in many implantable glucose monitors is the high glucose-to-oxygen ratios often found in human tissue. This ratio creates problems because a surplus of glucose and a shortage of oxygen will lead to a limited number of reactions with the enzyme, which lowers the electric current produced and results in inaccurate readings. To solve this problem, the present invention attempts to increase the amount of oxygen that reaches the enzyme. To do this, the invention teaches to create an enzyme emulsion to spark the reaction described above. The emulsion is comprised of, among other things, a substance in which oxygen is extremely soluble. The oxygen soluble substance increases the oxygen available to the enzyme by creating oxygen reservoirs, from which the enzyme can pull to continue the chemical reactions.

         The disputed terms are found in Claims 1 and 5 of the '225 Patent. Claim 1 describes the present invention as follows:

An implantable sensor for sensing a concentration of an organic substrate, the sensor comprising:
a conductive electrode; and
a stabilized enzyme emulsion in contact with the electrode, the enzyme emulsion comprising:
an oxidase enzyme that quantitatively oxidizes the organic substrate; a water immiscible oxygen dissolving substance emulsified into intimate contact with the enzyme to provide oxygen; and
a protein crosslinking agent to crosslink and insolubilize the enzyme forming a stabilized gel comprising crosslinked protein and particles ...

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