Millipore sued Gore for infringement of Patent No. 7,293,477 relating to fluid sampling devices. Gore moved for summary judgment of non-infringement. In an omnibus opinion, Judge Woodlock construed the claims and granted summary judgment of non-infringement.
The asserted claims were directed to devices used to sample fluids from large vats used in a variety of industrial applications. The dispositive claim terms were an “elongate member having a cap” and an opening “behind” the cap.
Based on the specification and prosecution history the court construed an “elongate member having a cap” as requiring the cap to be part of the same structure as the elongate member rather than a distinct element. The Court noted that the claim could have recited an “elongate member connected to a cap,” but didn’t. Since Gore’s cap was a distinct element, the court found that it did not literally infringe. Further, because the “having a cap” limitation was added to the claim during prosecution for substantive reasons, the Court found no infringement under doctrine of equivalents due to prosecution history estoppel. The court also found that the accused device did not have an opening for fluid draw located “behind” the cap.
The decision repeatedly mentions that the patentee “conceded” certain constructions that went against it at the Markman hearing. I’m wondering if the patentee actually conceded or simply adjusted their infringement positions post-Markman.
[UPDATE: The decision has been posted on the court website here: http://pacer.mad.uscourts.gov/dc/opinions/woodlock/pdf/millipore%20092010.pdf]
Millipore Corp. v. W.L. Gore & Assoc., Inc., 09-10765-DPW (D. Mass. Sep. 20, 2010)
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