refracted or scattered through a narrow range of angles relative to the axis. The RBC/Baso channel is similar except that it has three sensors, one located on the light beam axis and two laterally displaced therefrom. The two latter sensors receive light reflected from a semi-transparent mirror located on the light beam axis to a second semi-transparent mirror which reflects part of that light to one of the two off-axis sensors while allowing the remainder of the light to pass through to the other off-axis sensor.
Defendant contends that since each of the off-axis sensors in both the Perox and RBC/Baso channels is part of a photoresponsive assembly which includes an on-axis mirror, neither of these channels infringes either Claim 1 or Claim 9 of the '771 patent because neither has a "photoresponsive pick-up element" laterally displaced from the light beam axis. Plaintiff counters that since in both channels there are masks or "dark stops" which allow only off-axis refracted or scattered light to reach at least one of the sensors, each channel satisfies this claim limitation literally or at least under the doctrine of equivalents.
As frequently stated, summary judgment may not be granted if there is a genuine issue of material fact. Rule 56(c), F. R. Civ. P. It is thus appropriate only if the moving party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Laitram Corp. v. NEC Corp., 952 F.2d 1357, 1363 (Fed. Cir. 1991).
Defendant contends that there is no issue of material fact in this case because the interpretation of a patent claim is a legal question. Plaintiff correctly responds that the issue of infringement is one of fact and that a motion for summary judgment on that issue accordingly must be approached "with a care proportioned to the likelihood of its being inappropriate." Moeller v. Ionetics, Inc., 794 F.2d 653, 656 (Fed. Cir. 1986).
In this case, there is clearly an issue of fact as to whether in defendant's accused H.1 equipment there is "at least one photoresponsive pick-up element . . . displaced away from the direct path of the light beam," as called for in Claim 9 of the '771 patent, or "at least two photoresponsive pick-up elements positioned . . . at different angular positions with respect to the direction of said beam," as called for in Claim 1 of that patent.
The specification of the patent makes clear that the purpose of locating at least one of the photoresponsive pick-up devices at a position laterally displaced from the axis of the light beam is to cause it to pick up only light which has been refracted or scattered by the particles suspended in the liquid moving through the light beam. The specification also leaves no doubt that the photoresponsive pick-up devices referred to in the claims include not only the sensors themselves but the mirrors, lenses and other optical elements associated with them. Indeed, defendant has itself applied this interpretation by arguing that, in its accused equipment, the off-axis sensors are part of an on-axis photoresponsive pick-up device because they receive light from the light beam axis which is reflected by a semi-transparent mirror positioned on the axis. It therefore appears that the critical factor in determining whether a photo-responsive pick-up device is located on the axis of the light beam or is angularly displaced from the axis is not where its sensor element is located but whether it detects the direct, unscattered light traveling along the axis or the light which has been refracted or scattered away from the axis by the particles in the liquid flowing across the light beam. Thus, a photoresponsive pick-up device may fairly be considered to be located at a position displaced from the axis of the light beam if it is designed to and actually does selectively measure the light which is refracted or scattered away from said axis through a predetermined range of angular displacement.
It appears that in both the Perox and RBC/Baso channels of defendant's H.1 equipment, there is at least one photoreponsive pick-up device which does detect such scattered light, as well as at least one other which detects light on the beam axis. Thus there is clearly a triable claim of literal infringement of Claims 1 and 9 of the '771 patent or, at the very least, a triable claim of infringement under the doctrine of equivalents. Beyond any question, the Court cannot conclude as a matter of law that these claims are not infringed.
Defendant's motion for summary judgment must be and is hereby denied.
April, 8, 1994
William C. Conner
Senior U.S. District Judge
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