MiMedx Group Inc v. Nutech Medical Inc et al
Filing
64
MEMORANDUM OPINION AND ORDER GRANTING 23 MOTION to Dismiss as to all claims that NUTECH infringed Claims 6, 7, and 8 of the '494 Patent. In all other respects, such motion is DENIED. DENYING 27 MOTION to Stay Discovery and Rule 26 Obligations. The parties shall comply with Rule 26 within twenty days of the entry of this Memorandum Opinion and Order. Signed by Judge Virginia Emerson Hopkins on 11/24/2015. (JLC)
FILED
2015 Nov-24 PM 02:19
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MIMEDX GROUP, INC.,
Plaintiff/Counter-Defendant,
v.
NUTECH MEDICAL, INC.
Defendant,
DCI DONOR SERVICES, INC.,
Defendant/Counter-Plaintiff.
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) Case No.: 2:15-CV-0369-VEH
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MEMORANDUM OPINION AND ORDER1
This patent infringement action was initiated on March 2, 2015, by MiMedx
Group, Inc. (“MIMEDX”) against Nutech Medical, Inc. (“NUTECH”) and DCI
Donor Services, Inc. (“DCI”). Pending before the court are a Motion To Dismiss
(Doc. 23) filed by NUTECH on April 17, 2015, and an opposed Motion To Stay
Discovery and Rule 26 Obligations (Doc. 27) filed by NUTECH on May 5, 2015.
This case was reassigned to the undersigned on June 2, 2015. The undersigned then
entered a scheduling order regarding these pending motions. Responsive submissions
were filed and, on August 20, 2015, a four-and-a-half hour hearing was held before
1
All references to page numbers of documents filed with the court are to the pagination
assigned by the court’s electronic filing system.
the undersigned.2
MIMEDX is the owner of two patents, the ‘687 patent and the ‘494 patent.
In its complaint, MIMEDX asserts that NUTECH has infringed both of these
patents.3 In its motion to dismiss, NUTECH asserts that MIMEDX’s complaint is
due to be dismissed under Federal Rule of Civil Procedure 12(b)(6) on the basis
that each patent is invalid because each patent claims unpatentable subject matter.
Having considered the complete record, including post-argument submissions, and
having had the benefit of oral argument, the court concludes, for the reasons stated
below, that the motion is due to be granted in part and otherwise is due to be
denied. Further, the Motion To Stay is due to be denied.
I. FACTUAL BACKGROUND
A. The ‘687 Patent.
The ‘687 Patent is entitled “Methods fo Determining the Orientation of a
Tissue Graft” and has seven claims. Claim 1 of the ’687 patent is its only
independent claim. All of the remaining claims depend on Claim 1.
Claim 1 reads:
2
Because the undersigned promised a prompt ruling on the motion to dismiss, and
because the stay was sought only based upon the pendency of that motion, only the issues raised
in the motion to dismiss were argued at the hearing.
3
NUTECH expressly states that MIMEDX ‘s causes of action other than for patent
infringement “are not the subject of this motion to dismiss.” (Motion, doc. 23 at 5, fn1).
2
1. A method for permitting direct, visual determination of the
orientation of a placental tissue graft by user, wherein the placental
tissue graft has a first side and a second side, said method comprising:
placing an asymmetric label on a portion of at least one side of said
tissue graft, which label visibly distinguishes one side from the other
side, thereby permitting direct, visual determination of the orientation
for application of said tissue graft; and ascertaining the orientation of
the placental tissue graft by direct visual determination.
Dependent claims 2-4 are directed to different types of labels: “an
embossment” (Claim 2); “a raised or indented texture” (Claim 3) and “a logo, a
design, a name or text” (Claim 4). Dependent claim 5 is directed to a tissue graft
with “multiple tissue layers” (Claim 5). Dependent claims 6 and 7 require the
claimed label to visibly distinguish each side of the placental tissue graft: “a
basement side” (Claim 6); and “a stromal side” (Claim 7).
B. The ’494 Patent.
The ‘494 Patent, which shares the same disclosure as the ’687 patent,4 is
entitled “Placental Tissue Grafts” and has ten claims. Of these, Claims 1, 6, 9, and
10 are independent.
Claim 1 of the ’494 patent states:
A dehydrated, laminated tissue graft consisting essentially of one or
more washed and/or substantially cleaned amnion layers and one or
more washed and/or substantially cleaned chorion layers, wherein at
least one of the amnion layers contains its fibroblast cell layer, and
4
The ‘494 Patent issued from a continuation application of the ‘687 Patent.
3
further wherein the amnion layer and the chorion layer are directly
laminated to each other.
Claims 2-5 depend on Claim 1. Claim 2 has the additional requirement that
the claimed layers are “dehydrated together in a drying fixture.” Claim 3 requires
the amnion and chorion layers to be “treated with an antibiotic prior to
lamination.” Claim 4 requires the tissue graft to be “exposed to sterilizing
conditions.” Claim 5 requires “one amnion layer and one chorion layer.”
Independent claim 6 requires “one or more amnion layers” and “one or more
chorion layers” that have been separated, cleaned, and processed:
A dehydrated, laminated tissue graft, wherein the tissue graft consists
essentially of one or more amnion layers and one or more chorion
layers wherein each of the amnion and chorion layers: are separated
from a placenta to provide separate layers of amnion and chorion,
washed and substantially cleaned without removal of the fibroblast
cell layer from the amnion layer, and are layered directly over each
other and are laminated and heat dehydrated together to provide the
dehydrated, laminated tissue graft.
Claims 7 and 8 depend on Claim 6. Claim 7 requires “one amnion layer and
one chorion layer.” Claim 8 requires the amnion and chorion layers to be
“chemically decontaminated.”
Independent claim 9 requires the amnion layer to retain its epithelial cellular
layer, but otherwise is similar to Claim 1:
A dehydrated, laminated, placental tissue graft which is a laminate
4
comprising two or more separated and washed layers which layers are
selected from amnion and/or chorion wherein the layers are directly
laminated to each other and at least one of said layers is an amnion
layer which retains an epithelial cellular layer.
Independent claim 10 is also similar to claim 1, except that it uses the more
open-ended “comprising” language instead of “consisting essentially of” language
found in claim 1:
A dehydrated, laminated, placental tissue graft which is a laminate
comprising two or more separated and washed layers which layers are
selected from amnion and/or chorion wherein the layers are directly
laminated to each other and at least one of said layers is an amnion
layer which retains a fibroblast cellular layer.
II. LEGAL STANDARD5
For a complaint to survive dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6), it “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim
5
NUTECH clearly and appropriately relies on Iqbal and Twombly in advising the court of
the legal standard applicable to its motion to dismiss. (See Motion, doc. 23 at 11). In contrast,
MIMEDX relies entirely (and implausibly) on pre-Twombly decisions of the Eleventh Circuit and
one pre-Twombly decision of a judge of this district in setting out the legal standard applicable to
motions to dismiss. (See Opposition Brief, doc. 37 at 14-15, citing Brooks v. Blue Cross & Blue
Shield, 116 F.3d 1364, 1369 (11th Cir. 1997). Gonzalez v. McNary, 980 F.2d 1418, 1419 (11th
Cir. 1993), Carmichael v. Personnel Board of Jefferson County, No. 05-B-2371, 2006 U.S. Dist.
LEXIS 96990, at *2 (N.D. Al. Sept. 26, 2006), and Beck v. Deloitte & Touche, 144 F.3d 732,
735-36 (11th Cir. 1998)).
5
has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
In evaluating the sufficiency of a complaint, a court must accept all
well-pleaded factual allegations in the complaint as true and draw all reasonable
factual inferences in favor of the nonmoving party. (Twombly, 550 U.S. at 555 and
fn.3) However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at
678.
The grant or denial of a motion to dismiss for failure to state a claim is not a
matter unique to patent law and accordingly is reviewed under the applicable law
of the regional circuit. In re Bill of Lading Transmission & Processing Sys. Patent
Litig., 681 F.3d 1323, 1331 (Fed.Cir.2012). Neither party has pointed out, and the
undersigned has not located, any patent-specific rule adopted by the Eleventh
Circuit in reviewing motions to dismiss.
NUTECH asserts, and MIMEDX does not dispute, that
To decide this motion to dismiss, the Court must consider: (1) the
complaint; (2) the exhibits attached to the complaint; (3) matters of
public record; and (4) undisputably authentic documents if the
plaintiff’s claims are based on these documents. The court may also
take judicial notice of relevant public documents and records, such as
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the file histories of the asserted patents.
(Motion, doc. 23 at 11)(citations omitted).
III. ANALYSIS
MIMEDX argues that the motion is premature, in that claim construction
has not yet occurred. Further, the parties disagree as to whether or not NUTECH
must prove that dismissal is proper by “clear and convincing evidence.” Finally,
the parties disagree as to whether or not the patents at issue are directed to nonpatentable subject matter and thus are invalid unless an inventive concept has been
added, sufficient to transform non-patentable subject matter to an invention and,
finally, whether or not such “transformation” is set out in each patent. The court
will address these issues in the order set out above.
A. The Motion Is Not Premature.
MIMEDX argues that NUTECH’s motion is premature, as claim
construction has not yet occurred. (Opposition Brief, doc. 37 at 15-16; 29-30;
Response to Notice of Supplemental Authority, doc. 55 at 8-9). MIMEDX relies
primarily on Bancorp Servs. LLC v. Sun Life Assur. Co. of Canada (US), 687 F.3d
1266, 1273 (Fed. Cir. 2012) in support of this argument. (Id.). MIMEDX does
concede that “courts have been willing to dismiss claims under § 101 [for lack of
subject matter validity] without performing a claim construction analysis, [but
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argues that] in cases such as this, where parties clearly dispute the appropriate
meaning for a central term, courts have declined to rule on Rule 12 motions prior
to engaging in claim construction.” (Id.)(emphasis supplied). However, nowhere
does MIMEDX tell the court what “dispute” actually exists as to any term of either
patent.6
Unhelpfully, what MIMEDX does say conflates the question of law which
this court must decide - do the claims of the respective patents fail as claiming
non-patentable subject matter - with “facts” (e.g. “terms”) that are in dispute (e.g.,
must be “construed”). MIMEDX says:
NuTech’s motion is premature because it calls into question issues
that will be resolved by the Court during claim construction. As such,
it should be denied.
It is “ordinarily desirable—and often necessary—to resolve
claim construction disputes prior to a § 101 analysis.” Bancorp, 687
F.3d at 1273. This is particularly so in this case because the parties
will likely dispute at least the meaning of the “laminated” claim term
of the ’494 patent. Specifically, NuTech argues that because the
amnion of the claimed invention of the ’494 patent retains its
fibroblast layer, the amnion is “laminated” and in its “natural state in
the human body.” Thus, NuTech implicitly argues that amnion and
chorion layers are “laminated” if the “fibroblasts have not been
removed.” Such a construction is not proper. As used in the context
6
MIMEDX does state that “the parties will likely dispute at least the meaning of the
‘laminated’ claim term of the ‘494 patent.” (Opposition Brief, doc. 37 at 29) (emphasis supplied
by court). However, at oral argument, NUTECH clearly stated that, for purposes of the motion to
dismiss, it was not disputing MIMEDX’s construction of “laminated” as meaning “adhered,” and
no other claim terms are identified by MIMEDX as “likely dispute[d].” Further, MIMEDX does
not even identify a “likely” disputed term as to the ‘687 Patent.
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of the ’494 patent, the term “laminated” does not hinge on the
existence of the fibroblast layer. Rather, “laminated” requires that the
amnion/chorion layers are adhered together. Because a claim
construction dispute exists, NuTech’s motion should not be granted.
(Opposition Brief, doc. 37 at 29-30)(emphasis supplied)(internal citations
omitted).
MIMEDX also states:
Unlike Tranxition, in which “the parties [did not] raise[] any
factual disputes” for the Court to resolve, NuTech’s Motion to
Dismiss is ripe [sic] with factual disputes, even on this limited record.
For example, as a threshold matter, the Court must determine if the
claimed “dehydrated, laminated, placental tissue graft[s]” are found in
nature. Additionally, NuTech’s Motion to Dismiss raises other factual
disputes, including but not limited to: (1) whether the elements in the
claims of the ’494 patent describe a new and useful composition of
matter; (2) whether the combination of elements in claims of the ’494
patent embody an “inventive concept”; and (3) whether the claimed
amnion and the chorion layers dervied [sic] from natural placenta are
“separated,” “washed,” and then “directly laminated” to one another?
And, the disputed issues do not end here.
As such, in view of the plethora of factual disputes presented
by NuTech’s Motion to Dismiss, Defendants must prove invalidity by
clear and convincing evidence.7
(Response to Notice, doc. 55 at 8-9)(some alterations in original)(internal citations
omitted).
As NUTECH does not, for purposes of this motion, dispute the meaning of
7
Here, MIMEDX additionally conflates the issues of (i) the standard applicable to a
subject matter challenge to a patent with (ii) term construction.
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any claim terms, and specifically does not dispute the construction of “laminated”
as used in the ‘494 Patent as meaning “adhered,” the court finds that the motion is
not premature.
B. Nutech’s 12(b)(6) Burden Is Not Heightened.
MIMEDX asserts that its patents are “presumed valid” and thus NUTECH
bears the “high burden” of showing invalidity by “clear and convincing evidence.”
(See Opposition Brief, doc. 37, at 15; see also, Response to Notice, doc. 55 at 89.) NUTECH responds that such a presumption and burden do not apply where
there is no factual issue to be decided. The court finds that such a presumption and
burden have no impact in this case as there is no fact, but only a question of law,
to be determined, in light of the applicable legal standard governing motions to
dismiss brought under Rule 12(b)(6) for failure to state a claim.8 Thus, the sole
issue for this court to decide is whether or not, considering the claims in
MIMEDX’s complaint in the manner most favorable to MIMEDX, and construing
all terms of the patents in the manner proposed by MIMEDX, is MIMEDX’s
complaint due to be dismissed for invalidity of its patents under 35 U.S.C. § 101?
8
See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 713 (Fed. Cir. 2014) (Ultramercial
III) cert. denied sub nom. Ultramercial, LLC v. WildTangent, Inc., 135 S. Ct. 2907 (2015) (“We
review questions concerning patent-eligible subject matter under 35 U.S.C. § 101 without
deference. Research Corp. Techs., Inc. v. Microsoft Corp., 627 F.3d 859, 867 (Fed.Cir.2010).”).
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C. Patentable Subject Matter.
Patent-eligible subject matter is defined in Section 101 of the Patent Act:
Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title.
35 U.S.C. § 101. In choosing such expansive terms “modified by the
comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be
given wide scope.” Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980).
Yet, while the scope of Section 101 is broad, the Supreme Court has long
recognized that there is an “important implicit exception [to it]: [l]aws of nature,
natural phenomena, and abstract ideas are not patentable.” Alice Corp. Pty. Ltd v.
CLS Bank Int'l, 134 S. Ct. 2347, 2354 (2014) (internal quotation marks and
citation omitted); see also Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
132 S. Ct. 1289, 1293 (2012). “Phenomena of nature, though just discovered,
mental processes, and abstract intellectual concepts are not patentable, [because]
they are the basic tools of scientific and technological work.” Mayo, 132 S. Ct. at
1293 (quoting Gottschalk v. Benson, 409 U.S. 63, 67 (1972)).
The Supreme Court has also recognized, however, that “too broad an
interpretation of this exclusionary principle could eviscerate patent law.” Id.; see
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also Alice, 134 S. Ct. at 2354. This is because “all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or
abstract ideas.” Mayo, 132 S. Ct. at 1293; see also Alice, 134 S. Ct. at 2354. To
that end, it has explained that “an application of a law of nature, [natural
phenomena or abstract idea] to a known structure or process may well be
deserving of patent protection.” Diamond v. Diehr, 450 U.S. 175, 187 (1981)
(emphasis in original).
In terms of the process used to analyze patent eligibility under Section 101,
the Federal Circuit has explained that a court should first identify whether the
claimed invention fits within one of the four statutory classes set out in the statute:
processes, machines, manufactures, and compositions of matter. Ultramercial III,
772 F.3d at 713-14. The court must then assess whether any of the judicially
recognizable exceptions to subject matter eligibility apply. Ultramercial III, 772
F.3d at 714. NUTECH has challenged both patents as ineligible under Section 101
as claiming natural phenomena.
In Alice, the Supreme Court confirmed the framework to be used in order to
distinguish patents that claim patent-ineligible concepts, including natural
phenomena, from those that claim patent-eligible applications of those concepts:
First, we determine whether the claims at issue are directed to one of
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those patent-ineligible concepts.... If so, we then ask, “[w]hat else is
there in the claims before us?” ... To answer that question, we
consider the elements of each claim both individually and “as an
ordered combination” to determine whether the additional elements
“transform the nature of the claim” into a patent-eligible application.
... We have described step two of this analysis as a search for an “
‘inventive concept’ ”—i.e., an element or combination of elements
that is “sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself.”
Alice, 134 S. Ct. at 2355 (quoting Mayo, 132 S. Ct. at 1294-98) (citations omitted;
alterations in original). Since Alice, the Federal Circuit has recognized that
“[d]istinguishing between claims that recite a patent-eligible invention and claims
that add too little to a patent-ineligible ... concept can be difficult, as the line
separating the two is not always clear.” DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1255 (Fed. Cir. 2014).
D. The ‘687 Patent
The ‘687 Patent is a method patent. Thus, it is a “process,” and falls within
one of the four statutory classes set out in the Patent Act. The court therefore turns
to step one of Mayo to determine whether or not the claims of the ‘’687 Patent are
directed to a patent-ineligible concept (step one). If not, the court’s analysis ends,
and the motion to dismiss is due to be denied. If the claims are so directed, the
court must determined whether the patent claims add enough to constitute a
patent-eligible invention (step two of Mayo). If the answer at step two is “yes,”
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then the motion is due to be denied. If the answer at step two is “no,” then the
motion is due to be granted. In making these determinations, the court will look to
each claim both individually and as a composite. See Diehr, supra, at 188, 101
S.Ct. 1048 (“[A] new combination of steps in a process may be patentable even
though all the constituents of the combination were well known and in common
use before the combination was made”).
1. Claim 1
What is claimed is:
1. A method for permitting direct, visual determination of the
orientation of a placental tissue graft by user, wherein the placental
tissue graft has a first side and a second side, said method comprising:
placing an asymmetric label on a portion of at least one side of said
tissue graft, which label visibly distinguishes one side from the other
side, thereby permitting direct, visual determination of the orientation
for application of said tissue graft; and ascertaining the orientation of
the placental tissue graft by direct visual determination.
Applying step one of Mayo, the court determines that Claim 1 is “directed
to” a natural phenomenon, i.e., placental tissue. Accordingly, the court turns to
step two of Mayo. The court finds that Claim 1 sets out a process—adding an
asymmetrical label—that is “novel and useful”9 and that causes the placental tissue
to be physically “transformed” from such tissue as it exists in nature. Accordingly,
9
See Parker v. Flook, 437 U.S. 584, 591, 98 S. Ct. 2522, 2526, 57 L. Ed. 2d 451
(1978).
14
under Mayo step two, the court finds that Claim 1 adds enough to constitute a
patent-eligible invention and NUTECH’s motion to dismiss is due to be denied as
to Claim 1.
2. Claims 2-7
Because all of the remaining claims of the ‘687 Patent depend on the
method of Claim 1, the court finds that the same analysis of Mayo’s steps one and
two result in the same decision regarding these claims as well. Accordingly,
NUTECH’s motion to dismiss is due to be denied as to all of the claims of the
‘687 Patent.
E. The ‘494 Patent
The ‘494 Patent is also a “method” patent and, accordingly, falls within one
of the four statutory classes set out in the Patent Act. The court therefore turns to
step one of Mayo to determine whether or not the claims of the ‘494 Patent are
directed to a patent-ineligible concept (step one). If not, the court’s analysis ends,
and the motion to dismiss is due to be denied. If the claims are so directed, the
court must determined whether the patent claims add enough to constitute a
patent-eligible invention (step two of Mayo). If the answer at step two is “yes,”
then the motion is due to be denied. If the answer at step two is “no,” then the
motion is due to be granted. In making these determinations, the court will look to
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each claim both individually and as a composite.
1. Claim 1
What is claimed is:
1. A dehydrated, laminated tissue graft consisting essentially of
one or more washed and/or substantially cleaned amnion layers and
one or more washed and/or substantially cleaned chorion layers
wherein at least one of the amnion layers contains its fibroblast cell
layer, and further wherein the amnion layer and the chorion layer are
directly laminated to each other.
Applying step one of Mayo, the court determines that Claim 1 is “directed
to” a natural phenomenon, i.e., placental tissue. Accordingly, the court turns to
step two of Mayo. The parties agree that placental tissue as it occurs in nature has
both an amnion layer and a chorion layer, and that the amnion layer contains a
fibroblast cell layer. Merely cutting that tissue into pieces to be used as a graft is,
as stated in the patent application itself, not “novel” and therefore, without more,
does not “transform” that naturally occurring tissue into a patent-eligible
invention. Further, the undersigned agrees that separating the layers, washing or
otherwise cleaning them, and/or dehydrating them, are not “novel” and
accordingly do not “transform” the naturally occurring tissue into a patent-eligible
invention. However, giving the term “directly laminated to each other” the
meaning—“directly adhered to each other”—ascribed to that term by MIMEDX,
the court finds that Claim 1 sets out a method that is “novel and useful” and that
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“transforms” the naturally occurring tissue into a patent-eligible invention.
Accordingly, NUTECH’s motion to dismiss is due to be denied as to Claim 1.
2. Claims 2-5
Claims 2 through 5 carry forward the “directly laminated to each other”
term that causes Claim 1 to set out a method that is “novel and useful” and that
“transforms” the naturally occurring tissue into a patent-eligible invention.
Accordingly, NUTECH’s motion to dismiss is due to be denied as to these claims
as well.
3. Claim 6
What is claimed is:
6. A dehydrated, laminated tissue graft, wherein the tissue graft
consists essentially of one or more amnion layers and one or more
chorion layers wherein each of the amnion and chorion layers:
are separated from a placenta to provide separate layers of
amnion and chorion,
washed and substantially cleaned without removal of the
fibroblast cell layer from the amnion layer, and
are layered directly over each other and are laminated and heat
dehydrated together to provide the dehydrated, laminated tissue graft.
Again recognizing that the parties agree that placental tissue as it occurs in nature
has both an amnion layer and a chorion layer, and that the amnion layer contains a
fibroblast cell layer, the court finds that separating the layers from the placenta and
from each other, washing or otherwise cleaning them, layering them directly over
17
each other and laminating and heat dehydrating them, are not steps that are
“novel” and accordingly the method described in this claim does not “transform”
the naturally occurring tissue into a patent-eligible invention. Accordingly, the
court finds that NUTECH’s motion to dismiss is due to be granted as to this claim.
4. Claims 7-8
These claims depend on Claim 6. The court finds nothing in Claim 7 or
Claim 8, either alone or as a composite whole (including Claim 6) that is “novel”
so as to “transform” the naturally occurring placental tissue into a patent-eligible
invention. Accordingly, the court finds that NUTECH’s motion to dismiss is due
to be granted as to these claims.
5. Claim 9
What is claimed is:
9. A dehydrated, laminated, placental tissue graft which is a
laminate comprising two or more separated and washed layers which
layers are selected from amnion and/or chorion wherein the layers are
directly laminated to each other and at least one of said layers is an
amnion layer which retains an epithelial cellular layer.
This claim contains the “directly laminated to each other” term that the court
found “novel and useful” and transformative in analyzing Claim 1. The court finds
no reason to depart from that analysis. Consistent therewith, the court finds that
NUTECH’s motion to dismiss is due to be denied as to this claim.
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6. Claim 10
What is claimed is:
10. A dehydrated, laminated, placental tissue graft which is a
laminate comprising two or more separated and washed layers which
layers are selected from amnion and/or chorion wherein the layers are
directly laminated to each other and at least one of said layers is an
amnion layer which retains a fibroblast cellular layer.
This claim contains the “directly laminated to each other” term that the court
found “novel and useful” and transformative in analyzing Claim 1. The court finds
no reason to depart from that analysis. Consistent therewith, the court finds that
NUTECH’s motion to dismiss is due to be denied as to this claim.
IV. ORDER
Consistent with the foregoing analysis, NUTECH’s Motion To Dismiss is
hereby GRANTED as to all claims that NUTECH infringed Claims 6, 7, and 8 of
the ‘494 Patent. In all other respects, such motion is DENIED. Further,
NUTECH’s Motion To Stay Discovery and Rule 26 Obligations is hereby
DENIED. The parties shall comply with Rule 26 within twenty days of the entry
of this Memorandum Opinion and Order.
DONE this the 24th day of November, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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