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Dr. Paula Small v. Nobel Biocare Usa

March 21, 2012

DR. PAULA SMALL, PLAINTIFF,
v.
NOBEL BIOCARE USA, LLC; NOBEL BIOCARE AB; HENRY SCHEIN, INC.; CAMLOG USA, INC.; NEOSS LTD.; NEOSS INC.; IMPLANT DIRECT MFG. LLC D/B/A IMPLANT DIRECT, LLC; SOUTHERN IMPLANTS, INC.; SOUTHERN IMPLANTS (PTY) LTD.; MEGAGEN USA, INC.; AND MEGAGEN CO., LTD., DEFENDANTS.



The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge

MEMORANDUM AND ORDER

Plaintiff Dr. Paula Small initiated this action against defendants alleging infringement of two patents pertaining to dental implants, and it was recently reassigned to us following Judge Richard J. Holwell's resignation. Presently before us is the motion of defendants Nobel Biocare USA, LLC and Nobel Biocare AB (together, "Nobel") for reconsideration of a portion of the Court's August 11, 2011 claim construction ruling.

For the reasons set forth herein, Nobel's motion is granted in part.

BACKGROUND

The relevant background pertaining to the construction of the disputed claims is set forth in detail in Judge Holwell's August 11, 2011 opinion (the "Opinion"), Small v. Nobel Biocare USA, LLC, Nos. 05 Civ. 3225, 06 Civ. 683, 2011 U.S. Dist. LEXIS 91387 (S.D.N.Y. Aug. 16, 2011), and we assume familiarity with the terminology and constructions discussed therein. In that decision, Judge Holwell construed a variety of terms in plaintiff's two patents. At issue here is the construction of the term "flange" as it appears in two phrases in claim 11 of U.S. Patent No. 5,580,246 (the "'246 Patent"):*fn1 "a radially extending flange on said body" and "terminating within the thickness of said flange."*fn2

The Opinion adopted plaintiff's definition of "flange" --"the upper portion of the body of the implant which lies underneath the boss and extends radially from the longitudinal axis and forming a protruding collar or rim." Id. at *21, 30. Judge Holwell based his decision on a consideration of two pieces of intrinsic evidence. In particular, he found that Nobel's competing construction -- "a rim or collar projecting radially outwards from the implant body"*fn3 -- did not describe the patent's use of the term "flange" because it (1) was inconsistent with how the parties agreed the term "proximal surface" was used in the patent, see id. at *21-23; and (2) rendered certain language within claim 11 superfluous, see id. at *23-24. Judge Holwell also rejected Nobel's arguments about the insufficiency of plaintiff's definition, including that plaintiff's definition encapsulates a limitation that does not further a professed benefit and that it is contrary to the dictionary definition of the term. See id. at *26-30.

Nobel moved for reconsideration of the Opinion's construction of "flange" on August 30, 2011, challenging its treatment of each of the above arguments. The case was transferred to this Court on February 22, 2012, and we now decide the motion for reconsideration.

DISCUSSION

I. Legal Standard

A motion for reconsideration under Local Rule 6.3*fn4 is "an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Liu v. Credit Suisse First Boston Corp. (In re Initial Public Offering Sec. Litig.), 399 F. Supp. 2d 298, 300 (S.D.N.Y. 2005) (internal quotation marks omitted). As such, reconsideration is typically only appropriate when "the movant ha[s] pointed to 'controlling decisions or data that the court overlooked' -- matters 'that might reasonably be expected to alter the conclusion reached by the court.'" Lora v. O'Heaney, 602 F.3d 106, 111 (2d Cir. 2010) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). It may, however, also be warranted "where the movant demonstrates that there has been an intervening change of controlling law, that new evidence has become available, or that there is a need to correct a clear error or prevent manifest injustice." Padilla v. Maersk Line, Ltd., 636 F. Supp. 2d 256, 259 (S.D.N.Y. 2009) (citing Virgin Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).

The decision to grant or deny a motion for reconsideration is within "the sound discretion of the district court." Families for Freedom v. U.S. Customs & Border Protection, No. 10 Civ. 2705, 2011 U.S. Dist. LEXIS 113143, at *6 (S.D.N.Y. Sept. 30, 2011) (quoting Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009)).

II. The Appropriate Definition of the Term "Flange"

A. Departing from the Ordinary Meaning of a Term

The task before a court when construing claims is to "determine the meaning of any disputed words from the perspective of one of ordinary skill in the art at the time of the filing." Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008). The Federal Circuit therefore "generally assigns claim terms their ordinary and customary meanings, according to the customary understanding of a person of ordinary skill in the art who reads them in the context of the intrinsic record." Agilent Techs., Inc. v. Affymetrix, Inc., 567 F.3d 1366, 1376 (Fed. Cir. 2009); see also Intervet Inc. v. Merial Ltd., 617 F.3d 1282, 1287 (Fed. Cir. 2010) ("To the extent possible, claim terms are given their ordinary and customary meaning, as they would be understood by one of ordinary skill in the art in question at the ...


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