NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CELSIS IN VITRO, INC.,
Plaintiff-Appellant,
v.
CELLZDIRECT, INC. AND INVITROGEN
CORPORATION,
Defendants-Appellees,
__________________________
2011-1337
__________________________
Appeal from the United States District Court for the
Northern District of Illinois in Case No. 10-CV-4053,
Judge Milton I. Shadur
_________________________
Decided: October 21, 2011
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ADAM G. KELLY, Loeb & Loeb LLP, of Chicago, Illinois,
argued for plaintiff-appellant. With him on the brief were
JORDAN A. SIGALE and JULIE LANGDON.
RIP FINST, Life Technologies Corporation, of Carlsbad,
California, argued for defendants-appellees. With him on
the brief was SCOTT DAVID MILLER.
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CELSIS IN VITRO v. CELLZDIRECT 2
Before NEWMAN, MAYER, and O’MALLEY, Circuit Judges.
PER CURIAM.
In this patent case, Celsis In Vitro, Inc. (“Celsis”) filed
suit in the Northern District of Illinois against CellzDi-
rect, Inc. and Invitrogen Corporation (collectively, “LTC”) 1
alleging infringement of U.S. Patent No. 7,604,929 (“the
’929 Patent”), which claims methods for making and using
multi-cryopreserved hepatocytes. In an order dated
September 8, 2010, the district court granted Celsis’ first
motion for a preliminary injunction, enjoining LTC from
using its former method of making cryopreserved hepato-
cytes. LTC appealed that decision to this court in Appeal
No. 2010-1547, which remains pending. LTC subse-
quently developed a new method for making cryopre-
served hepatocyte products (“LTC’s new method”) and
began manufacturing and offering products for sale. In
response, Celsis filed a second motion for preliminary
injunction arguing that LTC’s new method includes only
minor changes and thus infringes the ’929 Patent. The
district court conducted a three-day evidentiary hearing
which included live testimony, and ordered post-hearing
supplemental submissions. On March 24, 2011, the court
denied Celsis’ second request for injunctive relief, finding
that Celsis was not likely to prove that LTC’s new method
infringed the ’929 Patent. Celsis timely appealed.
After full de novo review of the record, the parties’
briefs, and counsels’ arguments, and for the reasons
articulated in the district court’s decision, we agree with,
1 In 2008, Invitrogen Corporation merged with an-
other company and the surviving company became Life
Technologies Corporation (“LTC”). Appellees’ Br. 1 n.1.
CellzDirect is a wholly-owned subsidiary of LTC. As such,
for purposes of this decision, Defendants-Appellees are
collectively referred to as “LTC.”
3 CELSIS IN VITRO v. CELLZDIRECT
and thus adopt, the district court’s construction of “den-
sity gradient fractionation” and “without requiring a
density gradient fractionation step after thawing the
hepatocytes for a second time.” 2 In light of these claim
constructions, the district court did not abuse its discre-
tion in concluding that a showing of literal infringement
is not likely. As it relates to the doctrine of equivalents,
although the district court referred to the differences in
LTC’s new method as the “function,” rather than the
“way,” this minor misidentification does not alter the
analysis. When read in its entirety, the district court’s
decision as to Celsis’ likelihood of success under the
doctrine of equivalents is clear in its conclusion that the
way in which LTC’s new method functions (using a buffer,
fluid counterflow force, and centrifugal force) is substan-
tially different from the way in which the claimed “den-
sity gradient fractionation” functions (using a density
gradient medium and centrifugation alone), a conclusion
with which we agree based on the record before the court
at the preliminary injunction stage.
We have considered Celsis’ remaining arguments and
find them unpersuasive. For the foregoing reasons, and
because issuance of a full opinion would be largely dupli-
cative, we affirm the district court for the reasons articu-
lated in its decision, with the aforementioned minor
clarification regarding the court’s doctrine of equivalents
analysis. Accordingly, the district court’s decision deny-
2 We find that the district court carefully consid-
ered the language of the claims, the specification and
prosecution history, and the testimony of the parties’
witnesses in reaching its conclusions regarding the proper
construction of the claims and, thus, remained true to our
guidance in Phillips v. AWH Corp., 415 F.3d 1303, 1313-
19 (Fed. Cir. 2005) (en banc).
CELSIS IN VITRO v. CELLZDIRECT 4
ing Celsis’ motion for a second preliminary injunction is
affirmed.
AFFIRMED