Vexatious Plaintiff Is Slapped With $4.5M In Fees

By Zi Wang In MarcTec LLC v. Johnson & Johnson, 664 F.3d 907 (Fed. Cir. 2012), the Federal Circuit affirmed the district court’s holding that the case is exceptional and awarded a total amount of more than $4.5 million in attorney and expert fees to the defendant. Plaintiff MarcTec filed suit against Cordis, a subsidiary of Johnson & Johnson, alleging the latter of infringing the ‘753 and ‘290 patents. The two patents-in-suit are directed at surgical devices and implants with a therapeutic-agent-containing coating bonded by heat.  According to the prosecution history, in order to overcome the PTO’s rejection over the ‘417 patent, the patentee highlighted the fact that the coating is to be bonded by heat.  The patentee also tried to distinguish his invention from stents during prosecution for similar reasons.  The allegedly infringing product in question is the Cypher stent manufactured by Cordis.  The product utilizes the technology disclosed by the ‘417 patent, the same patent plaintiff distinguished and

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Federal Circuit Finds Prosecution History Narrowed Literal Scope of Claims

In Erbe Elektromedizin GmbH v. Canady Tech. LLC, 97 USPQ2d 1048 (Fed. Cir. 2010), ERBE Elektromedizin GmbH and ERBE USA, Inc. (collectively, “ERBE”) is the owner of U.S. Patent No. 5,720,745 (“’745 patent”), which is directed generally to argon gas-enhanced electrosurgical products for electrosurgery.  The ‘745 patent includes a “low flow” limitation in the independent claims as follows: Claim 1 recites that the “gas flows from the source, through the tube and exits through the opening at the distal end of the tube at a low flow rate of less than about 1 liter/minute”; and Claim 35 recites that “supplying the inert gas from the source of said gas through the tube to the distal end opening of said tube with such a low flow rate, that gas exiting through said distal end opening is a not directed, non laminar stream but forms an inert gas atmosphere” and has a depending claim 38 which defines that “the stream of gas

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Federal Circuit Finds Prosecution History Does Not Limit Claim Scope Where One Skilled In The Art Would Recognize Statement Is In Error

In Elbex Video, Ltd., v. Sensormatic Electronics Corporation, 2007-1097 (Fed. Cir. November 28, 2007), Elbex owns US Patent No. 4,989,085 (the ‘085 patent).  The ‘085 patent is drawn to a closed circuit television system including a supervisory station from which television cameras are controllable.  The supervisory station includes a video monitor to receive and display signals from the cameras, a device to control the cameras, and a switching device to select one of the cameras to be controlled.  To prevent manipulation of the wrong camera from the supervisory station, the ‘085 patent employs an addressing scheme in which each camera generates a unique first code signal.  The first code signal is sent from the camera with video data to a receiving device of the supervisory station.  A receiving device receives the first code signal, which is then input to a controlling means that generates a second code signal corresponding to the received first code signal and transmits that second code

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