COOK INCORPORATED v. ENDOLOGIX, INC.

Filing 300

ENTRY - The Court GRANTS in part and DENIES in part Endologix's motion for summary judgment of noninfringement (Dkt. 179 ). Specifically, the Court grants Endologix's motion with respect to noninfringement of the '706 patent by literal infringement, but denies Endologix's motion with respect to noninfringement of the '706 patent under the doctrine of equivalents and the '777 patent by literal infringement. Signed by Judge Tanya Walton Pratt on 8/31/2012. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
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COOK INCORPORATED Corporate Parent
COOK GROUP INCORPORATED,
Plaintiff,
vs.
ENDOLOGIX, INC.,
Defendant.
______________________________________
ENDOLOGIX, INC.,
Counter Claimant,
vs.
COOK INCORPORATED,
Counter Defendants.

No. 1:09-cv-01248-TWP-DKL

ENTRY ON ENDOLOGIX’S MOTION FOR SUMMARY JUDGMENT OF
NONINFRINGEMENT OF THE PATENTS-IN-SUIT
This matter is now before the Court on Defendant Endologix, Inc.’s (“Endologix”)
motion for summary judgment of noninfringement of Plaintiff Cook Incorporated’s (“Cook”)
U.S. Patent Nos. 5,035,706 (“‘706”) and 5,755,777 (“‘777”). (Dkt. 179). As noted in prior
entries, Cook has brought suit against Endologix alleging Endologix’s Powerlink stent and
Intuitrak delivery system infringe upon the ‘706 and ‘777 patents. The Court previously issued
an Entry on Claim Construction (Dkt. 145) pursuant to Markman v. Westview Instruments, Inc.,
517 U.S. 370 (1996). Endologix argues that under the Court’s claim construction, its products
“lack features specifically required by the Cook patents-in suit, and do not infringe as a matter of
1

law.” Dkt. 180 at 5. For the following reasons, the Court GRANTS in part and DENIES in
part Endologix’s motion (Dkt. 179).
I. BACKGROUND
A. Type of devices1
This patent dispute involves medical devices that treat abdominal aortic aneurysms
(“AAA”). An AAA is caused by a weakening of the wall of the aorta, the largest human artery.
This weakening can cause a balloon-like enlargement to develop in the aorta, increasing the
chances of aorta ruptures, which are often fatal.
Until the 1990’s, AAAs were typically treated through surgery that was incredibly risky
and painful. The surgeon had to open the patient’s chest and/or abdomen; move the patient’s
intestines to expose the aorta; cut out the diseased portion of the patient’s aorta; and sew a new
graft conduit into the aorta while interrupting blood flow to the patient’s lower body. Given the
invasive and traumatic nature of this procedure, the patient faced a long and uncertain recovery.
Thankfully, brilliant innovators pushed technology forward. Eventually, surgeons began
using self-expanding stent grafts, or small tubular wire cages (“stents”) covered with fabric grafts
(“grafts”), to treat AAAs.

These stent-based procedures obviate the need to cut open the

patient’s chest and/or abdomen, move intestines, and interrupt blood flow to the lower body. In
turn, these stent-based procedures are far less risky and invasive, requiring shorter hospital stays
and less recovery time.
Generally, to effectuate these procedures, the surgeon inserts a tube containing an
expandable stent graft into the patient through a small incision, usually in the groin to give
access to the femoral artery. The tube carries the stent, in a compressed state, to the treatment
site. Once there, the stent is released and it self-expands into position. Upon expanding, the
1

Portions of the following sections are reproduced from the Court’s Entry on Claim Construction. (Dkt. 145).
2

stent serv as a new pathway fo blood flow down the a
ves
w
or
w
aorta, relievi pressure on the AAA and
ing
A
thus prev
venting a rup
pture.
B.

Parties and products
P
p
Numerous co
N
ompanies ma stents, in
ake
ncluding Coo and Endo
ok
ologix. Cook’s flagship stent

is called the Zenith (which is no at issue). Endologix’ device is called the P
(
ot
’s
Powerlink. Cook
alleges th Endologi through the sale of its Powerlink stent and ac
hat
ix,
t
s
ccompanying delivery sy
g
ystem
(the “Intu
uitrak”), is infringing tw Cook pat
i
wo
tents: (1) the ‘706 paten which rel
e
nt,
lates to the a
actual
stent; and (2) the ‘777 patent, which relates to the deli
d
w
s
ivery system that carries the stent t the
m
to
treatment site.
t
C.

The ‘706 Pat
T
tent
Cook has st
C
tood at the forefront of endovas
e
scular techn
nology for several dec
cades.

Significa
antly, Cook’s ‘706 paten claims an improvemen on an ear
s
nt
nt
rlier Cook pa
atent, U.S. P
Patent
No. 4,580,568 (“‘568 patent”). The ‘568 pa
8
atent (which expired in 2
2004 and wa not assert in
as
ted
)
pecific type of self-expa
anding stent known as a Z-stent, wh
hich is made from
this case) covers a sp
a single wire bent int a “zig-zag shape. A depiction of a Z-stent is set forth be
w
to
g”
f
s
elow.

Z-stents can be compress inserted into a vesse and then re-expanded by virtue o the
Z
b
sed,
d
el,
d
of
spring-ex
xpanding na
ature of thei wire. Th self-expa
ir
his
anding stent technology was, in Co
y
ook’s
words, “w
wildly succe
essful.” Z-s
stents were not a cure-al however. They were often too s
n
ll,
.
e
short,

3

meaning stenting ov long leng
ver
gths required multiple s
d
stents, each delivered th
hrough a sep
parate
catheteriz
zation. Phys
sicians want a stent th could trea longer passageways w only a s
ted
hat
at
with
single
catheteriz
zation.
The ‘706 pat
T
tent—which embodies an improvem
a
ment of the ‘568 patent—
—helped fil this
ll
void, cov
vering a met
thod of conn
necting seve Z-stents together. The applica
eral
s
ation for the ‘706
patent was filed in 1989 and the ‘706 paten was issue d in 1991. Importantly the ‘706 p
1
e
nt
y,
patent
uses a se
eries of “eye on one end of the stent that in
es”
nterlock with a matchin set of eye on
h
ng
es
another stent.

As Cook state “the int
es,
terlocking s
stent assem
mbly permits and assur a
s
res

combinat
tion of stent that can be deployed at the same time and o
ts
b
e
over longer v
vessel length to
hs,
provide a simpler, an less inva
nd
asive medica procedure Dkt. 107 at 13. Figu 5 of the ‘706
al
e.”
ure
patent (re
eproduced below) depict an exampl of such a stent assemb
ts
le
bly.

Like the original ‘5 patent, the ‘706 preferred emb
568
t
bodiment is formed fro a single wire
om
n
z
figuration.” Dkt. 181-2 at 7 col. 3:6 “The end of the wir are
62.
ds
re
formed in a “closed zig-zag conf
closed by a sleeve [re
y
epresented by ‘12’ in Fig.5,] which is welded or tightly squ
b
r
ueezed against the
ends of th wire to pr
he
roduce a con
ntinuous or endless confi
e
figuration.” Dkt. 181-2 a 7 col. 3:62
at
2–65.
Cook alleges infringemen of claims 6 and 12 of t ‘706 pat
C
nt
the
tent. Claim 6 read:

4

Claim 6:

A method for combining a first and second self-expanding stent to form a stent assembly
for insertion into a body passageway comprising the steps of:
forming a first stent from a continuous first length of wire formed into a closed
zig-zag configuration having an endless series of straight sections joined at their
ends by a plurality of bends;
forming a second stent from a continuous second length of wire formed into a
closed zig-zag configuration having an endless series of straight sections joined at
their ends by a plurality of bends, the bends at one end defining eyes open at the
straight sections of the second stent;
engaging the eyes at the one end of the second stent about bends at one end of the
first stent; and closing the eyes at the one end of the second stent.
Dkt. 181-2 at 9 col. 7:13–28.
Claim 12 of the ‘706 patent reads as follows:
Claim 12:
A stent assembly comprising:
a first wire formed into a closed zig-zag configuration including;
an endless series of straight sections having opposite ends, said straight sections being
joined by bends at said opposite ends to form a first stent;
and
a second wire formed into a closed zig-zag configuration including;
a second endless series of straight sections having opposite ends, said straight sections
being joined by bends at said opposite ends to form a second stent;
a set of eyes formed at several of said bends at one of said opposite ends;
wherein said first and second stents are resiliently contractable into smaller first shape for
conveyance through a body passageway;
wherein said first and second stents are resiliently expandable into a second shape in
which the straight sections press against the walls of the body passageway; and

5

wherein said set of eyes of said seco stent are engaged ab
w
ond
e
bout said fir wire at o of
rst
one
sa opposite ends of said first wire.
aid
d
Dkt. 181-2 at 9 col. 8:35–59. The parties disputed ma of the cl
T
d
any
laims’ terms for purpos of
s
ses
Markman construction. Of par
n
rticular relev
vance to thi motion, th Court de
is
he
efined the p
phrase
“closed zig-zag conf
z
figuration” as meaning a “zig-zag structure wi the two ends of the wire
a
ith
joined together.” Dk 145 at 23.
kt.
.
D.

The Powerlin Stent
T
nk
Endologix’s Powerlink is comprised of a stent c
E
P
s
cage covered with an eP
d
PTFE graft c
cover.

The stent cage is com
t
mprised of a main body and two iliac legs, as illu
a
c
ustrated by th figure bel
he
low.

The main body and iliac legs are each forme from a sin
n
i
e
ed
ngle wire, fo a total of t
or
three wires i the
in
complete stent. Ea piece of wire is wr
ed
ach
f
rapped into a helical pa
attern to for a “distin
rm
nctive
diamond-shape cellu mesh de
ular
esign.” Dkt. 183-13 at 3 § 3.2.2. T legs are then attach to
.
The
e
hed
the main body to cr
n
reate a “uni
ibody” desig as seen above. Dk 183-13 a 3 § 3.2.2. As
gn
kt.
at
.
Endologi states, “[t
ix
t]he ends of the wires forming eac stent cag componen remain sp
f
ch
ge
nt
paced

6

apart by the length of [the sten cage],” Dkt. 180 at 1 and each end is wrapped aroun an
nt
14,
h
nd
adjoining portion of the stent bod Dkt. 180 at 19. This concept is illustrated b
g
t
dy.
0
s
below.

E.

The ‘777 Pat
T
tent
The ‘777 pate discloses a delivery device invo
T
ent
s
olving a self
f-expanding prosthesis. Prior

to the ‘77 patent, de
77
elivery syste were illems
-suited for A
AAA repairs. For instan they wer too
.
nce,
re
large to be inserted th
b
hrough remo vessels in a patient’s leg, used sh
ote
n
s
harp and tra
aumatic struc
ctures
that coul damage vessels durin a procedu and were subject to inaccurate p
ld
ng
ure,
e
positioning. The
‘777 pate helped ameliorate th
ent
a
hese problem reducing the risk of vessel dama and allo
ms,
g
age
owing
for less complicated and more ac
c
ccurate prost
thesis placem
ment. The o
original paten applicatio for
nt
on
what late became the ‘777 paten was filed in 1991 and the ‘777 pat was issu in 1998.
er
nt
i
tent
ued
Generally, the delivery de
G
e
evice contem
mplated by t ‘777 pate involves a self-expan
the
ent
nding
prosthesi that is pos
is
sitioned on a carrier, wh
hich holds th prosthesis in position during deli
he
s
n
ivery.
The carri is inserte into a tub
ier
ed
bular introdu
ucer sheath. The prosthesis is carrie on a region of
ed
the carrier called th stem. Th sheath is inserted th
he
he
s
hrough a sm incision in the pati
mall
n
ient’s

7

femoral artery and snaked throu the patient’s arterie to the aor where th self-expan
s
ugh
es
rta
he
nding
prosthesi is released A three di
is
d.
imensional example of th ‘777 pate is depicte below.
e
he
ent
ed

Cook ass
serts Claims 1 and 21–30 of the ‘777 patent.2 Gi
0
7
iven the larg number of Claims at i
ge
issue,
the Court will not rec them.
t
cite
The parties disputed man of the ter
T
d
ny
rms in the a
asserted claim Of part
ms.
ticular relev
vance,
the court construed th term “vas
t
he
scular dilator head region having a f
r
n
fixed shape” as “an end o the
of
central ca
arrier that ex
xpands the vessel during the introdu
v
g
uction of the sheath into the vessel ha
aving
a shape th cannot change.” Dk 145 at 43.
hat
kt.
F.

The Intuitrak Delivery System
T
S
Endologix’s Intuitrak sy
E
ystem is a delivery syst
d
tem used to deploy the Powerlink stent
e

graft. Th stent gra is preload into the delivery sy
he
aft
ded
ystem and re
eleased at th treatment site.
he
t
The Intui
itrak include a radiopaq tip at the distal end o the device which is m
es
que
e
of
e,
made of a fle
exible
material called Pebax The tip has a genera tapered or conical s
x.
h
ally
shape that ex
xpands the v
vessel
during in
as
ntroduction of the intro
oducer sheath to the ves
h
ssel. Addit
tionally, the Intuitrak ha an
integrated introducer sheath, and inner core. The device is illustrated below.
r
d
d

2

On July 20, 2010, th PTO issued a reexam
y
he
mination certi
ificate, confi
irming the patentability o
of
the delive system. In doing so, the PTO co
ery
onfirmed the patentabilit of amende Claim 1 a
e
ty
ed
and
over 10 other Claims Additiona
o
s.
ally, the PTO confirmed the patentab
O
bility of the d
device recite in
ed
Claim 11 but, in doin so, requir Cook to add that the “delivery sy
1,
ng
red
e
ystem is cha
aracterized by
absence of a guiding catheter” in light of the prior art.
o
n
8

G.

Claim Const
C
truction
After a Mark
A
kman hearing the Court issued its E
g,
Entry on Cla Construc
aim
ction, in wh
hich it

construed two terms that are par
d
rticularly rele
evant to this motion. R
s
Regarding the ‘706 paten the
e
nt,
Court defined the phrase “closed zig-zag con
d
nfiguration” as meaning a “zig-zag s
structure wit the
th
two ends of the wire joined tog
s
e
gether.” Dk 145 at 23 Regardin the ‘777 p
kt.
3.
ng
patent, the C
Court
defined the phrase “v
t
vascular dila head reg
ator
gion having a fixed shap as “an e of the ce
pe”
end
entral
carrier th expands the vessel during the introduction of the sheath into the vessel hav
hat
i
n
e
ving a
shape tha cannot cha
at
ange.” Dkt. 145 at 43.
II. LEGA STAND
AL
DARD
Like any othe case, sum
L
er
mmary judgm
ment is appro
opriate in a p
patent case “
“when there is no
genuine issue as to any material fact and the moving pa is entitle to judgme as a matt of
i
a
e
arty
ed
ent
ter
law.” Nike Inc. v. Wolverine World Wide, Inc., 43 F. 644, 646 (Fed. Cir. 1994) (cita
N
W
.3d
6
ations
omitted). A genuine issue of ma
.
e
aterial fact precluding su
p
ummary jud
dgment exist where the nonts
movant presents evid
p
dence such that, if the tr record w
t
rial
were the sam as the sum
me
mmary judg
gment

9

record, the fact finder could reasonably find in non-movant’s favor. Hall v. Aqua Queen Mfg.,
Inc., 93 F.3d 1548, 1553 n.3 (Fed. Cir. 1996).
The party moving for summary judgment bears the burden of demonstrating that no
genuine issues of material fact exist. Meyers v. ASICS Corp., 974 F.2d 1304, 1306–07 (Fed. Cir.
1992). The movant also bears the responsibility of informing the court of the basis for the
motion and identifying those portions of the record that establish the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When a motion for
summary judgment is properly made and supported, an opposing party may not rely merely on
allegations or denials, but instead must “set out specific facts showing a genuine issue for trial.”
Fed. R. Civ. P. 56(e). “If the opposing party does not so respond, summary judgment should, if
appropriate, be entered against that party.” Fed. R. Civ. P. 56(e). Finally, “on summary
judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached
exhibits, and depositions submitted] must be viewed in the light most favorable to the party
opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
III. DISCUSSION
Cook contends that its competitor Endologix—a relative newcomer to the market for
endovascular technology, at least compared to Cook—is infringing the ‘706 patent through the
sale of its Powerlink stent graft and the ‘777 patent through the sale of its Intuitrak delivery
system. The determination of patent infringement is a two-step inquiry. First, the court must
construe the asserted patent claims as a matter of law. Markman, 517 U.S. at 372–74 which the
Court has completed (See Dkt. 145). “Second, the court must determine whether the accused
product or process contains each limitation of the properly construed claims, either literally or by
substantial equivalent.” Freedman Seating Co. v. Am. Seating Co., 420 F.3d 1350, 1357 (Fed.

10

Cir. 2005). The second step is a question of fact. Id. A genuine dispute over any material fact
in this inquiry makes summary judgment improper. See, e.g., id. at 1260; Crown Packaging
Tech., Inc.v. Rexam Beverage Can Co., 559 F.3d 1308, 1315 (Fed. Cir. 2009); Dorel Juvenile
Group, Inc.v. Graco Children’s Prods., Inc., 429 F.3d 1043, 1047 (Fed. Cir. 2005). The Court
will examine Endologix assertions of noninfringement in turn.
A.

Literal Infringement of the ‘706 Patent
Literal infringement occurs when “every limitation set forth in a claim . . . [is] found in

an accused product, exactly.” Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575
(Fed. Cir. 1995). “[A] literal infringement issue is properly decided upon summary judgment
when no genuine issue of material fact exists, in particular, when no reasonable jury could find
that every limitation recited in the properly construed claim either is or is not found in the
accused device.” Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998). The analysis
begins by comparing each limitation in every disputed claim to discover if the limitations are
present in the accused device. If even one limitation is not met, a literal infringement claim fails.
Endologix contends that the “closed zig-zag configuration” limitation found in both
Claims 6 and 12 of the ‘706 patent is dispositive of the infringement issue “because the ends of
the wire forming the Powerlink’s main body and limbs are not ‘joined together,’” as required in
the asserted claims in the ‘706 patent. Dkt. 180 at 5. Cook asserts on summary judgment that
“[t]he phrase ‘joined together’ does not require direct contact or even close proximity” between
the ends of a wire. Dkt. 200 at 25. Specifically, it argues that the ends of a wire could be spaced
apart or located at opposite ends of the stent and still be “joined.” Rather than establish a
genuine issue of material fact, with this argument Cook attempts to circumvent the Court’s claim
construction with creative argument. See Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d

11

1312, 1321 (Fed. Cir. 2009) (“Once a district court has construed the relevant claim terms, and
unless altered by the district court, then that legal determination governs for purposes of trial.”).
Cook posits its expert’s opinion that a person of ordinary skill in the art would understand
“that joining does not require a particular spatial relationship between the ends of the length of
wire forming the stent.” Dkt. 200-2 at 43–44. By way of illustration, Cook and its expert point
to the ‘706 preferred embodiment, which states, “The ends of the wire are closed by a sleeve 12
which is welded or tightly squeezed against the ends of the wire to produce a continuous or
endless configuration.”

Dkt. 181-2 at 7 col. 3:62–65.

According to the expert, the ‘706

preferred embodiment “contemplates using an intermediate mechanical structure to link the ends
of the wire together, rather than joining the ends of the wire directly together.” Dkt. 200-2 at 44.
Moreover, Cook argues the Court’s construction of the relevant term “does not in any way limit
the manner in which the two ends are joined together.” Dkt. 200 at 26. Thus, Cook argues, the
Powerlink’s ends are joined by “mechanical links formed throughout the Powerlink stent cage
structure.” Dkt. 200 at 26. The Court agrees that neither the patent nor the claim construction
limits the method of connection to a sleeve, thus leaving the door open for other methods of
joining the ends of the wire, such as attaching, coupling, assembling, linking, crimping, or
twisting. But the limitation at issue does not refer to the method of joining the ends; it only
requires that the ends be joined. Dkt. 181-2 at 9 col. 7:17. Thus, the focus is on whether the
ends are joined, not how. It is undisputed that the Powerlink is constructed from a single wire in
a manner leaving the two ends separated by the length of the stent and located in opposite
locations. Because the claim requires these two ends to be joined, the Powerlink structure does
not literally meet a limitation of the ‘706 patent.

12

Cook’s expert further opines that “person of ordinary skill would have understood that
‘the two ends of the wire’ refers to any two ends of a wire that can be closed or joined to form a
stent having a continuous or endless configuration.” Dkt. 200-2 at 42–43. He asserts that the
Powerlink is created from a single wire consisting of multiple segments, or internal lengths, each
of which have “ends” that are joined to create multiple stents within the main body structure. It
stretches credulity to suggest that the Powerlink structure is in actuality three separate stent
structures. Cook is correct that the construction documents for the Powerlink identify three or
more segments of the single wire that are twisted and attached to create the main body or leg
stents, but nowhere are the segments referred to as individual stents.3 See Dkt. 181-4 at 5
(describing the Powerlink as a “stent graft made in one piece”). And “it is well settled that an
expert’s unsupported conclusion on the ultimate issue of infringement is insufficient to raise a
genuine issue of material fact. A party may not avoid that rule by simply framing the expert’s
conclusion as an assertion that a particular critical claim limitation is found in the accused
device.” Arthur A. Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042, 1046 (Fed. Cir. 2000). Here,
the expert’s opinion that the Powerlink’s main body structure is made of multiple stents, each
with ends that are joined, is no more than an unsupported conclusion that the accused device
contains a critical claim limitation, and does not create a genuine issue of material fact.
Because Endologix’s Powerlink structure does not have a “closed zig-zag configuration”
as disclosed by Claims 6 and 12, it does not literally infringe Cook’s ‘706 patent. Therefore,
summary judgment on the issue of literal infringement for Endologix is granted.

3

In the Court’s view, this feature is more akin to a different Claim 6 limitation describing “straight sections joined at
their ends by a plurality of bends.” Dkt. 181-2 at 9 col. 7:18–19. Therefore, this feature does not satisfy the
limitation requiring a “closed zig-zag configuration,” and “courts can neither broaden nor narrow the claims to give
the patentee something different than what he has set forth.” Oak Tech., Inc. v. Int’l Trade Comm’n, 248 F.3d 1316,
1329 (Fed. Cir. 2001).

13

B.

Infringement of the ‘706 Patent by the Doctrine of Equivalents
Under the doctrine of equivalents, “a product or process that does not literally infringe

upon the express terms of a patent claim may nonetheless be found to infringe if there is
‘equivalence’ between the elements of the accused product or process and the claimed elements
of the patented invention.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 21
(1997). The doctrine is often applied using the function-way-result test, which states“[a]n
accused product that does not literally infringe a claim may infringe under the doctrine of
equivalents if ‘it performs substantially the same function in substantially the same way to obtain
the same result.’” Southwall Techs., 54 F.3d. at 1579 (quoting Graver Tank & Mfg. Co. v. Linde
Air Prods. Co., 339 U.S. 605, 608 (1950)). Or, courts may apply the all limitations test which
“holds that an accused product or process is not infringing unless it contains each limitation of
the claim, either literally or by an equivalent.” Freedman Seating Co., 420 F.3d at 1358.
In Warner-Jenkinson, the Supreme Court stated that regardless of the linguistics used, the
pertinent inquiry requires “[a] focus on individual elements and a special vigilance against
allowing the concept of equivalence to eliminate completely any such elements.” WarnerJenkinson Co., 520 U.S. at 40. Courts must consider the totality of circumstances in each case to
determine whether an alleged infringing device “can fairly be characterized as an insubstantial
change from the claimed subject matter without rendering the pertinent limitation meaningless.”
Freedman Seating Co., 420 F.3d at 1359. The Court is obliged to grant summary judgment
“where the evidence is such that no reasonable jury could determine two elements to be
equivalent.” Bai, 160 F.3d at 1353–54 (quoting Warner-Jenkinson Co., 520 U.S. at 38 n.8).
Cook has alleged Endologix infringes the ‘706 patent under the doctrine of equivalents
because among other things, the Powerlink stent cages and their individual segments perform

14

substantially the same function (forming a stent), in substantially the same way (with a
continuous closed configuration), to achieve substantially the same result (a resiliently
contractable and expandable hoop structure) as a wire formed into the “closed zig-zag
configuration” of the asserted ‘706 claims. Dkt. 200 at 2.
Endologix, however, contends that on the ‘706 patent, the theory of claim vitiation
precludes a finding of infringement under the doctrine of equivalents. See Freedman Seating
Co., 420 F.3d at 1358 (“[A]n element of an accused product is not, as a matter of law, equivalent
to a limitation of the claimed invention if such a finding would entirely vitiate the limitation.”).
Relying on numerous Federal Circuit cases,4 it specifically argues the Powerlink contains “the
very antithesis or opposite of the claim limitation—the asserted claims require ends ‘joined
together’ and the Powerlink ends are not joined together.” Dkt. 180 at 22. Therefore, it argues
the Powerlink cannot contain an equivalent of a “closed zig-zag configuration” without rendering
the requirement meaningless.
Cook responds that the Powerlink does not embrace the antithesis of a “closed zig-zag
configuration,” because “the ends of the wire plainly are joined in some manner; they are not
‘separate’ or ‘disconnected.’” Dkt. 200 at 29. Cook argues that its position “does not seek to
4

For example, Endologix relies upon Moore U.S.A. v. Standard Register Co., 229 F.3d 1091 (Fed. Cir. 2000).
There, the plaintiff argued summary judgment on noninfringement was precluded under the doctrine of equivalents.
At issue was a claim limitation requiring “50.001%” or a majority of length. Id. at 1106. Plaintiff argued the
defendant’s use of 47.8% length was an insubstantial difference that was the equivalence of 50.001%. The court
rejected this argument. It held:
the applicant’s use of the term “majority” is not entitled to a scope of equivalents covering a
minority for at least two reasons. First, to allow what is undisputedly a minority (i.e. 47.8%) to be
equivalent to a majority would vitiate the requirement that the “first and second longitudinal strips
of adhesive . . . extend the majority of the lengths of said longitudinal marginal portions.” If a
minority could be equivalent to a majority, this limitation would hardly be necessary, since the
immediately preceding requirement of a “first and second longitudinal strips of adhesive disposed
in said first and second longitudinal marginal portions, respectively of said first face” would
suffice. Second, it would defy logic to conclude that a minority – the very antithesis of a majority
– could be insubstantially different from a claim limitation requiring a majority, and no reasonable
jury could find otherwise.
Id. (internal citation omitted).
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include ‘open’ configurations within the meaning of the claimed ‘closed’ configurations.” Dkt.
200 at 29 n.16. Instead, Cook’s position is “that the [Powerlink’s] mechanical linking structures
join the ends of the wires together, whether literally or equivalently, to create ‘closed’ zig-zag
configurations.” Dkt. 200 at 29 n.16.
Endologix has failed to establish claim vitiation as a matter of law.

Although the

Powerlink’s ends are not joined together in a manner to establish literal infringement, it is
undisputed that the ends of the Powerlink wire are joined to the stent structure. The wires are not
disconnected, which in the Court’s view, more aptly captures the “antithesis” of “the ends of the
wire joined together.” Considering the facts in the light most favorable to Cook, the Court
cannot conclude as a matter of law that if this feature of the Powerlink’s structure is determined
to be the equivalent of a “closed zig-zag configuration,” then that limitation would be rendered
meaningless.
Because Endologix has not put forth any additional evidence or argument that establishes
the Powerlink is substantially different than the ‘706 patent, there are genuine issues of material
fact for trial. Therefore, the Court agrees with Cook that it is for the jury to decide whether the
Powerlink’s ends are “joined together” in a manner creating the equivalent of a “closed zig-zag
configuration.” Summary judgment on this issue is accordingly denied.
C.

Literal Infringement of the ‘777 Patent
As set forth above, literal infringement occurs when “every limitation set forth in a

claim . . . [is] found in an accused product, exactly.” Southwall Techs., Inc., 54 F.3d at 1575.
The Court will grant “summary judgment when no genuine issue of material fact exists, in
particular, when no reasonable jury could find that every limitation recited in the properly
construed claim either is or is not found in the accused device.” Bai, 160 F.3d at 1353. The

16

analysis begins by comparing each limitation in every disputed claim to discover if the
limitations are present in the accused device.

If even one limitation is not met, a literal

infringement claim fails.
Endologix contends the “having a fixed shape” limitation found in the ‘777 patent’s
asserted claims is dispositive of the infringement issue because the Intuitrak’s vascular head
dilator region (“tip”) changes shape. Specifically, Endologix argues the Intuitrak tip “was
intentionally designed to be flexible so that it can easily bend and conform to the patient’s
vasculature as it travels from the insertion site to the treatment site.” Dkt. 180 at 26; Dkt. 183-13
at 5 § 7.1.1 (“Flexible material with tapered tip that will allow the introducer sheath to track to
the desired site in the anatomy without kinking.”). It argues that the tip’s ability to flex and bend
to fit a particular patient’s vasculature demonstrates that the tip can change shape. For example,
Endologix explains that the tip “can easily change between an ‘I’ and ‘J’ shape . . . , or assume
even more complex shapes like an ‘S’ shape.” Dkt. 205 at 21. Endologix’s expert further
explains that the
tip is very flexible and is capable of being manipulated to match the most tortuous
of vasculatures. This includes being bent in more than just one place at a time
along its length. I have also observed on withdrawal of the IntuiTrak carrier that
the tip can have a memory, frequently remaining bent or curved as a result of its
passage through the patient’s vasculature. These facts are inconsistent with the
tip having a shape “that cannot change” and meeting the claim limitation “having
a fixed shape.”
Dkt. 183-3 at 9.
Cook responds that despite flexing and bending, the Intuitrak’s tip always maintains its
generally tapered or conical shape. Specifically it argues that the flexibility of Intuitrak’s tip is a
necessary design feature of vascular dilators and does not establish that the tip changes shape.
Cook’s expert opines that a person of ordinary skill in the art would not equate a “change in

17

shape” with flexing or a deformation of shape that is “typically reversed once the dilator is no
longer in contact with the vessel wall.” Dkt. 200-2 at 79–80. Additionally, Cook asserts that an
inflexible or rigid vascular dilator would be inoperable or dangerous. See AIA Eng’g Ltd. v.
Magotteaux Int’l S/A, 657 F.3d 1264, 1278 (Fed. Cir. 2011) (“While inoperability in itself does
not doom AIA’s construction, a construction that renders the claimed invention inoperable
should be viewed with extreme skepticism.” (internal quotation marks omitted)). To support this
point, Cook offers the deposition testimony of Endologix’s expert who stated that use of a rigid
dilator “would not be advisable. . . . [it] could be traumatic to the vessel wall.” Dkt. 200-15 at
67:18–21. Cook’s own expert similarly opined that “[i]n order to safely introduce the dilator
head into the vascular system, and then navigate through curving and diseased blood vessels to
the abdominal aneurysm, the vascular dilator head structure must be flexible.” Dkt. 200-2 at 80.
The Court finds Cook has established a genuine issue of material fact regarding whether
the Intuitrak tip “has a shape that cannot change.” Endologix has not provided the Court with
evidence that, as a matter of law, the Court’s construction of the limitation “having a fixed
shape” in the ’777 patent does not encompass tips that bend or flex but do not retain the bent or
flexed shape. The Court cannot say that a reasonable jury would conclude that the Intuitrak tip
does not literally infringe the ‘777 patent. Therefore, summary judgment on this issue is denied.
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS in part and DENIES in part
Endologix’s motion for summary judgment of noninfringement (Dkt. 179). Specifically, the
Court grants Endologix’s motion with respect to noninfringement of the ‘706 patent by literal
infringement, but denies Endologix’s motion with respect to noninfringement of the ‘706 patent
under the doctrine of equivalents and the ‘777 patent by literal infringement.

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SO ORDERED:

08/31/2012

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution to:
Bradley G. Lane
BRINKS HOFER GILSON & LIONE
[e-mail]

Daniel K. Burke
HOOVER HULL LLP
[e-mail],fgipson@hooverhu
ll.com

Bryan John Leitenberger
BRINKS HOFER GILSON & LIONE
[e-mail]

Joseph S. Cianfrani
KNOBBE MARTENS OLSON & BEAR,
LLP
[e-mail]

Danielle Anne Phillip
BRINKS HOFER GILSON & LIONE
[e-mail]

Kelly J. Eberspecher
BRINKS HOFER GILSON & LIONE
[e-mail]

Jason W. Schigelone
BRINKS HOFER GILSON & LIONE
[e-mail]

John David Evered
KNOBBE MARTENS OLSON & BEAR,
LLP.
[e-mail],
[e-mail]

John B. Sganga , Jr
KNOBBE MARTENS OLSON & BEAR,
LLP.
[e-mail]

Ralph J. Gabric
BRINKS HOFER GILSON & LIONE
[e-mail],
[e-mail]

Joshua J. Stowell
KNOBBE MARTENS OLSON & BEAR,
LLP.
[e-mail]

Andrew W. Hull
HOOVER HULL LLP
[e-mail]

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