United States Court of Appeals
for the Federal Circuit
__________________________
LEXION MEDICAL, LLC,
Plaintiff-Appellee,
v.
NORTHGATE TECHNOLOGIES, INC., SMITH &
NEPHEW, INC.,
AND LINVATEC CORPORATION,
Defendants-Appellants.
__________________________
2009-1494
__________________________
Appeal from the United States District Court for the
Northern District of Illinois in case no. 04-CV-5705, Judge
Charles P. Kocoras.
___________________________
Decided: April 22, 2011
___________________________
DAVID G. WILLIE, Baker Botts, L.L.P., of Dallas,
Texas, argued for plaintiff-appellee. With him on the
brief was DAVID O. TAYLOR.
MEREDITH M. ADDY, Brinks Hofer Gilson & Lione, of
Chicago, Illinois, argued for defendants-appellants. With
her on the brief were TIMOTHY Q. DELANEY, TIMOTHY P.
LUCIER and LAURA A. LYDIGSEN.
__________________________
LEXION MEDICAL v. NORTHGATE TECH 2
Before RADER, Chief Judge, DYK and PROST, Circuit
Judges.
RADER, Chief Judge.
The United States District Court for the Northern
District of Illinois entered summary judgment that De-
fendants-Appellants Northgate Technologies, Inc., Smith
& Nephew, Inc., and Linvatec Corp. (collectively, “North-
gate”) infringe United States Patent No. 5,411,474 (“’474
patent”). Lexion Med., LLC. v. Northgate Techs., 618
F. Supp. 2d 896 (N.D. Ill. 2009). Contesting this judg-
ment, Northgate questions the district court’s construc-
tion of the claim limitation “having a temperature within
2°C of the predetermined temperature.” Because the
record amply supports the trial court’s interpretation of
this claim term and we find no genuine issue of material
fact regarding infringement, this court affirms.
I
To create more working space during laparoscopic
procedures, surgeons inflate the abdominal cavity with
gas. Traditionally, an insufflator directly pumped gases
used for laparoscopic procedures through a tube and into
a patient’s body. The gases were relatively cold (generally
at least 17°C below body temperature), ’474 patent col.1
ll.63-64, and dry (200 parts per million or less of water
vapor), id. at col.2 ll.35-36.
Because of the cold and dry gas, patients could ex-
perience post-operative shivering and shoulder pain as a
common side effect of laparoscopic procedures. To mini-
mize this side effect, the ’474 patent discloses and claims
an apparatus for heating and humidifying gas to a prede-
termined and preset temperature for use during laparo-
scopic procedures. Id. at col.3 ll.44-48.
3 LEXION MEDICAL v. NORTHGATE TECH
The claimed apparatus aims to deliver gas “within
2°C of the predetermined temperature.” Id. at col.4 ll.31-
32. For example, the patent provides for gas being deliv-
ered “while still maintained at the desired temperature,
or at least within about 2°C of it, and preferably within
about 0.5°C[.]” Id. at col.9 ll.28-30. The specification also
states that upon activation “there is a lag time of millisec-
onds for sensing the temperature of gas and adjusting the
heating to achieve the proper gas temperature. . . . [and
that] approximately the first 12 to 15 cubic centimeters of
gas leaving the apparatus after it is activated are cooler
than the predetermined temperature.” Id. at col.9 ll.49-
55.
Claims 11 and 12 of the ’474 patent are at issue in
this appeal. Claim 11 states:
11. A method of providing heated, humidified gas
into a patient for an endoscopic procedure com-
prising the steps of:
a) directing pressure- and volumetric flow
rate-controlled gas, received from an insuffla-
tor into a chamber having a means for heating
the gas to a temperature within a predeter-
mined range and a means for humidifying the
gas and being disposed immediately adjacent
to the patient, wherein the chamber is in flow
communication with and immediately adja-
cent to a means for delivering the gas to the
interior of the patient;
b) sensing the temperature of the gas as it ex-
its the chamber to determine if it is within the
predetermined range; and
LEXION MEDICAL v. NORTHGATE TECH 4
c) actuating the heating means if the tempera-
ture of the gas is without the predetermined
range;
d) humidifying the gas within the chamber;
and
e) flowing the gas into the delivery means
such that the gas enters the patient humidi-
fied and having a temperature within 2°C of
the predetermined temperature and thus pro-
viding the gas.
Id. at col.12 ll.43-65 (emphasis added). Dependant claim
12 requires:
12. The method of claim 11, wherein the heating
means and the humidifying means heat and hu-
midify the gas simultaneously.
Id. at col.12 ll.66-68 (emphasis added).
Northgate’s accused Humi-Flow device heats and hu-
midifies gas from an insufflator. Gas from the insufflator
passes through a tube connected to an inlet leading into
the Humi-Flow’s chamber. The gas is heated and humidi-
fied before being pushed through the Humi-Flow’s outlet,
into a tube, and then into a patient’s body.
The Humi-Flow indirectly heats gas flowing through
it. Heating elements within the Humi-Flow raise the
temperature of a heater core. Gas passing through the
Humi-Flow is heated through contact with that heater
core. By maintaining the heater core at 70°C the passing
gas is heated to 37°C.
The Plaintiff-Appellee Lexion Medical, LLC (“Lexion”)
sued Northgate for infringement of both claims 11 and 12
of the ’474 patent for making and selling its Humi-Flow
device.
5 LEXION MEDICAL v. NORTHGATE TECH
II
This case has previously appeared before this court.
Lexion Med., LLC. v. Northgate Techs., Inc., 292 Fed.
Appx. 42 (Fed. Cir. 2008) (“Lexion I”). In Lexion I, this
court, inter alia, vacated the district court’s judgment of
infringement of the ’474 patent and remanded with new
constructions of the claim limitations “means for humidi-
fying,” “means for heating,” and “predetermined tempera-
ture.” Id. at 51-52. On remand, as noted, the district
court granted Lexion’s motion for summary judgment of
infringement.
At the trial preceding Lexion I, Dr. John Burban
(“Burban”) provided expert testimony that the Humi-Flow
released gas “having a temperature within 2°C of the
predetermined temperature.” The district court did not
construe “predetermined temperature.” Burban’s first
declaration and data were premised on a proposed con-
struction of “predetermined temperature” later rejected by
this court in Lexion I.
Burban conducted two sets of experiments (“Test 1”
and “Test 2”) to measure the temperature of gas heated by
the Humi-Flow. These tests took temperature readings at
the outlet, or exit, of the Humi-Flow, and at the exit of a
trocar, or tube, leading to a water bath. The only differ-
ence between Test 1 and Test 2 was trocar placement.
Burban’s first declaration analyzed data collected
from both Test 1 and Test 2. Burban’s analysis showed
that the temperature range of gases coming from the
Humi-Flow fit within Lexion’s initial “range of range”
construction of “predetermined temperature” and also
satisfied “having a temperature within 2°C of the prede-
termined temperature.” Lexion’s “range of range” con-
struction of “predetermined temperature” explained that
the claimed device was set to a predetermined tempera-
LEXION MEDICAL v. NORTHGATE TECH 6
ture that was not a single temperature point, but was
within a range of temperatures. With this construction of
“predetermined temperature,” Lexion argued that the 2°C
range in limitation (e) meant within 2°C of the predeter-
mined temperature range, “a range of a range.”
At the trial preceding Lexion I, the jury returned a
special verdict that Northgate induced and contributed to
the infringement of the ’474 patent. Lexion Med., LLC. v.
Northgate Techs. Inc, No. 1:04-CV-5705, slip op. at 1 (N.D.
Ill. Feb. 12, 2007). The district court denied Northgate’s
motion for Judgment as a Matter of Law and entered
judgment for Lexion. Id. at 3-4. On appeal in Lexion I,
this court construed “predetermined temperature” as “a
single temperature point,” vacated the jury’s verdict, and
remanded for further proceedings on the issue of in-
fringement. After remand from this court, Lexion I, 292
Fed. Appx. at 51-52, Lexion and Northgate cross-moved
for summary judgment of infringement and noninfringe-
ment respectively.
On remand, Lexion filed a new expert declaration
(“second declaration”) from Burban. Working with the
new narrower construction of “predetermined tempera-
ture,” Burban’s second declaration only analyzed a subset
of the data from Test 1. The second declaration identified
the temperatures entering the simulated patient to span a
range of 3.64°C, and almost always within 2°C of 37°C,
human body temperature. In its reply in support of its
motion for summary judgment of non-infringement,
Northgate objected to Burban’s second declaration, argu-
ing it made contradictory new arguments after the close of
discovery, and thus violated Federal Rules of Civil Proce-
dure 26(a)(2) and 37(c)(1).
Limitation (e) of claim 11 requires gas to enter the pa-
tient “humidified and having a temperature within 2°C of
7 LEXION MEDICAL v. NORTHGATE TECH
the predetermined temperature.” ’474 patent col.12 ll.63-
64. The district court held that limitation (e) of claim 11
did not require that the temperature range always be
within 2°C of the predetermined temperature because the
’474 specification discloses that temperatures “will, at
times, fluctuate outside the four-degree range.” Lexion,
618 F.Supp.2d at 902. Based on this record, the district
court granted summary judgment of literal infringement
for Lexion. Id.
Northgate timely appealed the district court’s grant of
summary judgment. This court has jurisdiction under 28
U.S.C. § 1295(a)(1).
III
A.
Summary judgment in this case was premised in part
on the district court’s interpretation of limitation (e) of
claim 11. Claim construction is a question of law which
this court reviews without deference. Cybor Corp. v. FAS
Techs. Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998) (en
banc).
This court gives words of a claim their ordinary and
customary meaning. Phillips v. AWH Corp., 415 F.3d
1303, 1312 (Fed. Cir. 2005) (en banc). The customary
meaning of a claim term is not determined in a vacuum
and should be harmonized, to the extent possible, with
the intrinsic record, as understood within the technologi-
cal field of the invention. Id. at 1314 (citing Medrad, Inc.
v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed. Cir.
2005)); see also ACTV, Inc. v. Walt Disney Co., 346 F.3d
1082, 1088 (Fed. Cir. 2003) (“[T]he context of the sur-
rounding words of the claim also must be considered in
determining the ordinary and customary meaning of those
terms”).
LEXION MEDICAL v. NORTHGATE TECH 8
Limitations (b) and (c) of claim 11 inform the meaning
of limitation (e) of the claim. This court prefers a claim
interpretation that harmonizes the various elements of
the claim to define a workable invention. See Phillips,
415 F.3d at 1315-16 (the construction that “most natu-
rally aligns with the patent’s description of the invention
will be, in the end, the correct construction”).
Reading limitations (b), (c), and (e) together shows, as
the trial court correctly concluded, that the claimed
invention will tolerate and correct minor fluctuations
outside of the 4°C range of limitation (e). Limitation (b)
requires the claimed method to “sens[e] the temperature
of the gas as it exits the chamber to determine if it is
within the predetermined range,” and limitation (c) adds
that, in response to limitation (b), the device can “ac-
tuat[e] the heating means if the temperature of the gas is
without the predetermined range[.]” ’474 patent col.12
ll.55-60. Because limitations (b) and (c) imply that gas
leaving the chamber will fluctuate briefly outside of the
predetermined range, the range of the gas entering the
patient through a tube leading from the chamber, as
described by limitation (e), must have the same fluctua-
tions.
The district court thus also gives a correct meaning to
the term “within” in the contested limitation. In the
context of this particular invention, “within” does not
mean “always within.” Indeed, as noted above, both the
claim context which includes limitations (b) and (c) and
the specification inform one of ordinary skill in this art
that “within” carries a reasonable meaning that tolerates
temperature fluctuations in the normal start-up and
usage of the invention. This court also observes that
alternative wordings of this limitation, such as the alter-
natives “sometimes within” or “occasionally within”
proposed by Northgate, would disrupt more than promote
9 LEXION MEDICAL v. NORTHGATE TECH
the definitional precision of the “within 2°C” limitation as
limited to minor variations.
Beyond the claim context and language, the specifica-
tion also permits minor fluctuations outside of the 2°C
range in limitation (e). While the ’474 patent discloses a
precise method of heating and humidifying gas “prefera-
bly within about 0.5°C” of the predetermined tempera-
ture, the specification acknowledges and contemplates
that gas will not always be delivered to a patient within
0.5°C of the predetermined temperature. At one point,
the specification clarifies that the patient would receive
gas “at least within about 2°C” of the predetermined
temperature. ’474 patent col.9 ll.28-30 (emphasis added).
At another juncture, the specification notes that
“upon activating the apparatus or changing the demand
on the apparatus (e.g. flow rate or pressure), there is a lag
time of milliseconds for sensing the temperature of gas
and adjusting the heating to achieve the proper gas
temperature.” Id. at col.9 ll.47-55. Thus, the specification
discloses that the temperature will at times fluctuate
outside of the range. Apart from activation and changing
rate flow demands, the specification discloses other times
when the gas will not be within 2°C of the predetermined
temperature. See ’474 patent col.9 ll.26-31 (“Thus, the gas
that is now heated, humidified and filtered . . . [passes
into the patient] within about 2°C [of the predetermined
temperature]”). In sum, the specification also supports
the district court’s construction of the claim terms.
The district court correctly interpreted “having a tem-
perature within 2°C of the predetermined temperature”
not to require the claimed device to always be with 2°C of
the predetermined temperature. Thus, the trial court’s
interpretation of this phrase reflects accurately both the
LEXION MEDICAL v. NORTHGATE TECH 10
claim language and the specification’s support for that
claim language.
The district court’s construction is also fully consis-
tent with this court’s construction of “predetermined
temperature” in Lexion I. In Lexion I, this court rejected
Lexion’s “range of range” proposed construction in favor of
“a single temperature point.” 292 Fed. Appx. at 49.
Northgate argues this court’s rejection of Lexion’s “range
of temperatures” requires the district court to narrowly
construe “within 2°C of the predetermined temperature”
to require gas heated by the claimed device to always be
within 2°C of the predetermined temperature. 1 To the
contrary, this court’s construction of “predetermined
temperature” in Lexion I and the district court’s subse-
quent construction of “within 2°C of the predetermined
temperature” are consistent.
The district court found, and this court agrees, that
the Humi-Flow can heat gas that varies, at times, from
within 2°C of the predetermined temperature and can
still literally infringe the ’474 patent. Because the prede-
termined temperature is a single temperature point (even
if selected from a range of possibilities), the term “within
2°C of the predetermined temperature” means just that,
within 2°C of the predetermined temperature, subject to
minor fluctuations. This court detects no inconsistency
and sustains the trial court’s determination.
1 Northgate concedes there might be two instances
identified by the ’474 patent where the temperature could
be outside the 2°C range of the predetermined tempera-
ture—at start up and when there are flow rate changes.
Appellant Br. at 45. Northgate’s argument that gas must
always be within 2°C of the predetermined temperature
would apply to all other times.
11 LEXION MEDICAL v. NORTHGATE TECH
B.
This court turns next to a review of the record to de-
termine whether summary judgment was proper. Sum-
mary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). This court reviews the district
court’s grant or denial of summary judgment under the
law of the regional circuit. MicroStrategy Inc. v. Bus.
Objects, S.A., 429 F.3d 1344, 1349 (Fed. Cir. 2005). The
Seventh Circuit reviews the district court's grant of
summary judgment without deference. Chaklos v. Ste-
vens, 560 F.3d 705, 710 (7th Cir. 2009). This court re-
views evidentiary determinations by the district court
under the law of the regional circuit. Insituform Techs.,
Inc. v. CAT Contracting, Inc., 161 F.3d 688, 694 (Fed. Cir.
1998). The Seventh Circuit reviews evidentiary determi-
nations for an abuse of discretion. Griffen v. Foley, 542
F.3d 209, 217-18 (7th Cir. 2008).
Lexion contends that summary judgment of infringe-
ment was proper under a construction of the “within 2°C
of the predetermined temperature” limitation that per-
mits minor temperature fluctuations outside of the 4
degree range. In his second declaration, Burban drew
conclusions based on his consideration of a subset of his
prior test data which excluded data collected from the
Humi-Flow operating at a 20 LPM flow rate, because flow
rates that high “represent[ed] an unrealistic situation
that would not occur during a real surgery.” J.A. 14,851.
Considering the relevant data collected at realistic flow
rates, Burban concluded that the Humi-Flow provided gas
at the trochar end at temperatures within 2°C of 37°C for
all but 15 seconds of his 20 minute test. Lexion argues
that those few seconds outside the 4 degree range consti-
tute a minor fluctuation that is permissible under our
LEXION MEDICAL v. NORTHGATE TECH 12
proper claim construction of the “within 2°C of the prede-
termined temperature” limitation. Northgate argues that
Burban’s second declaration, which considered only a
subset of collected data, should have been excluded.
The district court permitted Lexion to rely on Bur-
ban’s second declaration to show that the accused device
delivered gas within 2°C of the predetermined tempera-
ture. Burban’s second declaration followed the remand
wherein this court provided a new claim construction to
the district court. Lexion I, 292 Fed. Appx. at 51-52.
This court remanded to permit the trial court to reassess
the case in the context of the new claim construction. Id.
In that context, the district court had wide discretion to
permit the parties to supplement the record with new
factual declarations consistent with the new understand-
ing of the claim. Bowers v. BayState Techs., Inc., 320 F.3d
1317, 1334 (Fed. Cir. 2003) (a change in claim construc-
tion at the appellate level “generally necessitates a re-
mand to the district court to consider new factual issues”).
In the context of a new claim construction, the district
court did not abuse its discretion by permitting Lexion to
submit Burban’s second declaration.
The record also shows that the trial court properly
concluded that, drawing all inferences in favor of the non-
moving party, Lexion was entitled to summary judgment
of infringement. The record shows no material disputes of
fact that the accused Humi-Flow device heats and main-
tains gas as a “predetermined temperature” within the
claimed range, allowing for minor fluctuations. Moreover,
where the record adequately supports the judgment, the
district court does not have an obligation to recite every
detail of its reasoning. See, e.g., Univ. of Pittsburgh v.
Varian Med. Sys. Inc., 569 F.3d 1328, 1335 (Fed. Cir.
2009) (vacating and remanding judgment not supported
13 LEXION MEDICAL v. NORTHGATE TECH
by the record). In this case, the record sufficiently sup-
ports the trial court’s judgment.
The district court correctly construed limitation (e) of
claim 11 and properly declined to read in a limitation that
the gas must always fall within a 4°C range of the prede-
termined temperature. With all evidence viewed in a
light most favorable to Northgate, this court detects no
genuine issue of material fact to preclude a conclusion
other than that the accused Humi-Flow device infringes
the ’474 patent. Accordingly, this court affirms the dis-
trict court’s grant of Lexion’s motion for summary judg-
ment of literal infringement.
AFFIRMED