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ELEKTA INSTRUMENT v. O.U.R. SCIENTIFIC INTERN.

June 15, 1999

ELEKTA INSTRUMENT S.A., PLAINTIFF,
v.
O.U.R. SCIENTIFIC INTERNATIONAL, INC., DEFENDANT.



The opinion of the court was delivered by: McKENNA, District Judge.

MEMORANDUM AND ORDER

In this patent infringement action, defendant O.U.R. Scientific International, Inc. ("OSI") moves for summary judgment of noninfringement of U.S. Patent 4,780,898 ("the '898 Patent"), and plaintiff Elekta Instrument S.A. ("Elekta") cross-moves for summary judgment of infringement. For the reasons set forth below, defendant's motion for summary judgment is denied and plaintiffs cross-motion for summary judgment is granted.

I. FACTS

The parties to this action market and/or sell medical devices known as gamma units. Gamma units are used to treat brain tumors and other brain abnormalities through focused radiation therapy, as an alternative to open skull surgery. A gamma unit focuses multiple beams of radiation onto a common focal point within the brain. While each individual beam is harmless to the brain tissue, when multiple beams intersect, the combined energy at the focal point works to destroy the abnormal tissue. Gamma units generally have several basic components: cobalt radiation sources located in a large hemispherical shaped radiation shield; circular holes, called beam channels, contained within such shield and directed inward and radially; an inner collimator containing holes that are aligned with the beam channels, which is used to control dosage and distribution of the radiation; and a treatment table for moving the patient into and out of the treatment chamber. (See OSI Mem. at 2-3).

Plaintiff Elekta, a Swiss corporation, is the owner of the '898 Patent, which issued on October 25, 1988. Entitled "Arrangement in a Gamma Unit," it claims a specific arrangement of radiation sources and beam channels in a gamma unit such that there is minimal risk of radiation scatter outside the unit. (See Pollack Decl.Ex. B).

A. The Prior Art

In the prior art gamma units, the radiation sources were positioned over the crown of the patient's head.*fn1 This required the patient's head to be secured in the inner collimator helmet at a 55° angle relative to the horizontal plane of the treatment table in order to prevent radiation from passing through the longitudinal axis of the patient and escaping outside the helmet. (See Pl.'s 56.1 St. ¶¶ 7-8). Tipping the patient's head at such an angle reduced, but did not eliminate, the potential for radiation scatter. (Id. ¶ 8; see '898 Patent col. 1, lines 30-35).

B. The '898 Patent

In 1986, Hans Sundqvist filed the Swedish patent application that ultimately matured into the '898 Patent. (Pl.'s 56.1 St. ¶ 9). The '898 Patent explains the deficiencies in prior art gamma units as follows:

  In these prior art arrangements, some beams will approach the
  longitudinal axis of the patient so that there is a certain
  risk that scattered radiation and an occasional primary beam
  will reach the surroundings when the door toward the central
  member is opened.

('898 Patent, col. 1, lines 30-35). According to Sundqvist, the novel matter in his invention consisted of eliminating the radiation sources near the longitudinal axis of the patient (i.e., near 90°). The specification of the '898 Patent thus states:

  The novel matter of the arrangement according to the invention
  resides in that the radiation sources and the beam channels
  directed radially therefrom toward the focal point are located,
  in relation to the diametrical plane across the opening to said
  space, within a zone extending to latitudes 30°-45°, from said
  diametrical plane.

('898 Patent, col. 1, lines 44-50) (emphasis added). According to Sundqvist, this arrangement — by allowing the patient to lie flat rather than with his head tipped at a 55° angle — would provide a gamma unit adapted to the mode of operation of CT (computer tomography) and NMR (nuclear magnetic resonance) machines, while minimizing the risk of scattered radiation. (See '898 Patent, col. 1, lines 38-43; see also col. 3, lines 3-7).

  The '898 Patent contains six claims. Claim 1 is the only
independent claim and is the sole claim at issue here. As
originally drafted, Claim 1 provided:
 1. An arrangement in a gamma unit, comprising a large number
  of radiation sources (9) mounted within a radiation shield (2)
  and having beam channels (6, 19) directed radially from said
  radiation sources toward a common focal point (F), . . .
  characterized in that the radiation sources (9) and the beam
  channels (6, 19) directed radially therefrom toward the focal
  point are located, in relation to the diametrical plane through
  the opening to said space, within a zone extending to latitudes
  30°-45°, as seen from said diametrical plane.

In the first Office Action, mailed on December 29, 1987, the Patent Examiner stated:

    Claims 1-6 are rejected under 35 U.S.C. § 103 as being
  unpatentable over applicants [sic] disclosure.
    From what the examiner can tell from applicants [sic]
  statements on page 1 of his disclosure concerning the
  background of the art, everything as claimed is already known.
  Applicants [sic] stated point of novelty is only the
  elimination of the radiation sources which are located within a
  zone that is near or on the longitudinal plane of the patient.
  Applicant claims his sources within a zone of latitudes from
  30°-45°. But the prior art gamma units have sources which are
  located within a zone which includes 30°-45°. Applicant does
  not claim ...

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