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