The opinion of the court was delivered by: John G. Koeltl, District Judge
Hypoxico, Inc. brings this action against the defendants, Colorado Altitude Training, LLC and its president, Mr. Lawrence Kutt (collectively "CAT"), alleging that CAT infringed Hypoxico's patents, including United States Patents Nos. 5,964,222 ("the '222 Patent") and 5,799,652 ("the '652 Patent").*fn1
CAT denies any infringement and has filed a counterclaim against Hypoxico and its president, Mr. Igor (Gary) Kotliar (collectively "Hypoxico"), for infringement of United States Patent No. 5,860,857 ("the '857 Patent"). AGA Aktiebolag ("AGA") has been joined as an involuntary counter-plaintiff on the counterclaim because of its interest in the '857 Patent. Hypoxico now moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on its infringement claims with respect to claims 4, 5, 13, and 17-19 of the '652 Patent, and claims 3, 16, and 17 of the '222 Patent, and for summary judgment dismissing CAT's infringement claims with respect to the '857 patent.
The facts are set forth in the Court's prior Opinion and Order, Hypoxico, Inc. v. Colorado Altitude Training LLC, 2003 WL 21649437 (S.D.N.Y. July 14, 2003), and repeated to the extent necessary to decide the present motion.
The following facts are undisputed unless otherwise noted. Hypoxico is a Delaware corporation with its principal place of business in New York, New York. CAT is a Colorado limited liability corporation with its principal place of business in Boulder, Colorado. Mr. Kutt, a citizen of Colorado, is the president of CAT. All parties are involved in the sale of low-oxygen content ("hypoxic") equipment meant to simulate high altitude conditions.
The patents at issue in the complaint are directed to hypoxic training equipment invented by Mr. Kotliar. Hypoxic equipment simulates high altitude conditions. It does so by providing a reduced oxygen content in the structure even though the air pressure in the structure is not the low pressure that prevails at high altitudes. Hypobaric equipment would simulate high altitude conditions by producing low pressure in the chamber. Hypoxico alleges that CAT produces products that infringe on Hypoxico's patents.
The '652 Patent is entitled "Hypoxic Room System and Equipment for Hypoxic Training and Therapy at Standard Atmospheric Pressure," and was issued on September 1, 1998. It is a continuation-in-part ("CIP") of United States Patent No. 5,850,853. The '222 Patent is entitled "Hypoxic Tent System," and was on October 12, 1999. The '222 Patent is a CIP of the '652 Patent. The '857 Patent was granted on January 19, 1999 and was assigned to AGA, which subsequently granted an exclusive license to CAT.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); University of Colorado Foundation, Inc. v. American Cyanamic Co., 196 F.3d 1366 (Fed. Cir. 1999). The trial court's duty at the summary judgment motion stage of the litigation is merely to discern "whether there are disputed material facts;" it does not extend to resolving any such disputes. SunTiger, Inc. v. Scientific Research Funding Group, 189 F.3d 1327, 1333 (Fed. Cir. 1999); see also Lemelson v. TRW, Inc., 760 F.2d 1254, 1260 (Fed. Cir. 1985) ("[f]or summary judgment, fact-finding is an inappropriate exercise"). The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. Where the nonmoving party bears the burden of proof, summary judgment is appropriate if the moving party can show "that there is an absence of evidence to support the nonmoving party's case." Id. at 325. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must "point to an evidentiary conflict created on the record," and may not rely only on "mere denials or conclusory statements." Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986); see also Applied Companies v. Unites States, 144 F.3d 1470, 1475 (Fed. Cir. 1998) ("It is well settled that 'a conclusory statement on the ultimate issue does not create a genuine issue of fact.'") (quoting Imperial Tobacco Ltd v. Philip Morris, Inc., 899 F.2d 1575, 1581 (Fed Cir. 1990)). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a "reasonable inference" could be drawn "in favor of the non-movant," summary judgment is improper. Roche Palo Alto LLC v. Apotex, Inc., 531 F.3d 1372, 1377 (Fed. Cir. 2008).
Infringement analysis is a two-step process: "The first step is determining the meaning and scope of the patent claims asserted to be infringed. The second step is comparing the properly construed claims to the device accused of infringing." Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc) (citation omitted), aff'd 517 U.S. 370 (1996); see also N. Am. Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 1344 (Fed. Cir. 2005).
Claim construction, the first step in infringement analysis, is a matter of law. See Markman, 52 F.3d at 979. Courts determine the scope of a claim by applying well-known principles of claim construction and examining three relevant sources: the language of the claim, the specification and the prosecution history. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996); see generally Phillips v. AWH Corp, 415 F.3d 1303, 1312-17 (Fed. Cir. 2005).
The language of a claim provides the starting point in a claim construction analysis. See Phonometrics, Inc. v. Northern Telecom Inc., 133 F.3d 1459, 1464 (Fed. Cir. 1998). "Absent a special and particular definition created by the patent applicant, terms in a claim are to be given their ordinary and accustomed meaning." Renishaw PLC v. Marposs Societa' Per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998). "[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention. . . ." Phillips, 415 F.3d at 1313.
The specification, however, is also highly relevant to the claim construction analysis, because it is the best guide to the meaning of a disputed term. Id. at 1315 (citing Markman, 52 F.3d at 978). A court in its discretion may consider extrinsic evidence including expert and inventor testimony, dictionaries, and learned treatises, although the Court of Appeals for the Federal Circuit has indicated that extrinsic evidence is less significant than the intrinsic record and that the Court should discount expert testimony that is clearly inconsistent with the construction of the claim indicated by the written record. Phillips, 415 F.3d at 1317-19.
With respect to the second step of infringement analysis, literal infringement requires that the accused device embody every limitation of a claim. See Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed. Cir. 1995).*fn2 If the parties only dispute claim construction and do not dispute relevant facts concerning the structure and operation of the accused products, "the question of literal infringement collapses into claim construction and is amenable to summary judgment." Gen. Mills, Inc. v. Hunt-Wesson, Inc., 103 F.3d 978, 983 (Fed. Cir. 1997); see also Mymail, Ltd. v. America Online, Inc., 476 F.3d 1372, 1378 (Fed. Cir. 2007). This second step of infringement analysis is a question of fact, and therefore summary judgment on a claim of literal infringement issue is appropriate "when no genuine issue of material fact exists, in particular, when no reasonable jury could find that every limitation recited in the properly construed claim either is or is not found in the accused device." Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998).
The asserted claims*fn3 of the '652 Patent claim are as follows:*fn4
1. A system for use in an external atmospheric environment of air at an external ambient air pressure and having an ambient oxygen concentration for providing a reduced-oxygen atmosphere to a user, said system comprising: a gas separation device having an inlet intaking an intake gas mixture and first and second outlets, said first outlet transmitting a first gas mixture derived from said intake gas mixture and having a higher oxygen content than the intake gas mixture and said second outlet transmitting a second gas mixture derived from said intake gas mixture and having a lower oxygen content than the intake gas mixture; a breathing chamber having an internal space therein containing air and including an entry communicating with said internal space and through which the user can enter said internal space; said second outlet communicating with said internal space and transmitting said second mixture to said internal space so that said second mixture mixes with the air in the internal space; said first outlet transmitting said first gas mixture to the external atmospheric environment; and said breathing chamber permitting the communication of air in at least one direction between the external atmospheric environment and the internal space and in combination with the gas separation device, maintaining the air in the internal space at a pressure generally equalized with the ambient air pressure of the external atmospheric environment and at a substantially constant concentration of oxygen substantially lower than said external ambient oxygen concentration.
4. The invention according to claim 1 and said breathing chamber having vents therein, said vents providing for flow of air between said external atmospheric environment and said internal space.
5. The invention according to claim 4 and said vents having apertures therein through which air can flow in either direction between said internal space and said external atmospheric environment.
11. A system for use in an external atmospheric environment of air at an external ambient air pressure for providing a low-oxygen environment for a user, said system comprising:
a chamber comprising a door and wall structure defining a closed space into which the user can enter through the door; a gas processing device having an intake and first and second outlets, said device intaking a gas mixture through said intake and emitting a reduced oxygen gas mixture having a lower concentration of oxygen than said gas mixture through said first outlet and emitting an enriched-oxygen gas mixture having a greater concentration of oxygen than said gas mixture through said second outlet; said first outlet being connected with said chamber so that the reduced-oxygen gas mixture is emitted into said closed space inside the chamber and mixes with the air therein; said chamber having apertures therein allowing communication therethrough of air in the outside environment with air in the chamber, said chamber and said gas processing device maintaining the air in the closed space at a pressure substantially equal to the external ambient air pressure and at a substantially constant oxygen concentration lower than the air outside the chamber; said gas processing device comprising a separation unit to which the intake gas mixture from the inlet is transmitted, said separation unit separating the intake gas mixture into a reduced oxygen gas mixture with an oxygen concentration lower than said intake gas mixture and an enriched oxygen gas mixture with an oxygen concentration higher than said intake gas mixture, said separation unit having a reduced oxygen mixture conduit through which said reduced oxygen gas mixture is transmitted and an enriched oxygen mixture conduit through which said enriched oxygen gas mixture is transmitted; said first outlet being operatively associated with said reduced oxygen mixture conduit and receiving said reduced oxygen gas mixture therefrom, said second outlet being operatively associated with said enriched oxygen mixture conduit and receiving said enriched oxygen gas mixture therefrom and releasing said enriched oxygen gas mixture to the external atmospheric environment.
13. The invention according to claim 11 and said separation unit comprising a pump applying said intake gas mixture to a pressure swing adsorption device having molecular sieve material which adsorbs nitrogen from the intake gas mixture being compressed by said pump, leaving the enriched oxygen gas mixture which is transmitted to said enriched oxygen conduit and is discharged to the external atmospheric environment outside said chamber and said adsorption device on depressurization releasing a nitrogen concentrate gas which is transmitted as said reduced oxygen gas mixture to said reduced oxygen conduit and is released into said chamber.
17. The invention according to claim 11 and said intake intaking the intake gas mixture from the air of the external atmospheric environment outside the chamber.
18. The invention according to claim 17 and said apertures in said chamber being located in a lower portion of the chamber.
19. The invention according to claim 11 and said apertures providing openings in said wall structure.
The asserted claims of the '222 Patent claim are as follows:
1. A system for providing a reduced-oxygen atmosphere for breathing to a user at rest, said system comprising: an oxygen-extraction device having an inlet taking in ambient air and an outlet for transmitting oxygen-depleted air; a portable tent having internal space therein and an entry communicating with said internal space and through which the user can enter said internal space; said tent having collapsible supporting structure; said outlet communicating with said internal space and transmitting said oxygen-depleted air to said internal space; said internal space communicating with an external environment through naturally existing gaps and fabric pores, allowing excess air to escape said internal space and equalizing atmospheric pressure inside said tent to the outside parameter.
3. The system according to claim 1 and said hypoxic tent made of soft synthetic or natural material and supported by supporting structure, which is inflatable or assembled from segments made from metal, plastic or composite material.
6. A portable travel system for providing a low-oxygen environment to a user for sleeping comprising: a breathing tent comprising soft walls supported by a supporting structure and an entry defining a closed space for, accessible to the user through said entry being selectively closable so that when closed, the tent is substantially isolated from the outside environment; a gas-processing device having outlet communicating with said closed space and transmitting oxygen-depleted gas mixture through said outlet inside said closed space.
16. The system according to claim 6 and said gas-processing device employing pressure-swing adsorption technology to provide ...