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Justin E. Gray

IP Litigation Attorney at Foley & Lardner LLP

Former Adjunct Professor at Northwestern University School of Law

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Friday
May262017

When Is a Pump Not a Pump?

Skedco, Inc. v. Strategic Operations, Inc. (Fed. Cir. Apr. 24, 2017)

In this case, the Federal Circuit reversed the district court's claim construction requiring that the claimed "pump" and "valve" be physically separate structures in a patent related to a system for simulating trauma with lifelike mannequins.

The claims at issue required "at least one valve in fluid communication with said pump."  The district court construed "valve" as "a device that regulates, directs, or adjusts the flow of fluid through a passageway by opening, closing, or restricting the passageway."  The district court construed "pump" as "a device that moves or transfers fluid by mechanical action."  In deciding summary judgment of non-infringement, the district court held that there was no literal infringement of this claim element because the valves in the accused device were not physically separate from the pump, and instead resided within the pump housing.

The Federal Circuit held that the district court's requirement of a physically separate pump and valve was error.  Looking first to the claims themselves, the court noted that the claims did not require the pump and valve to be physically separate, instead only requiring them to be "in fluid communication," and pointed out that another claim of the patent recited a "pump in fluid communication with [a] reservoir" where the "pump is in a cavity of said reservoir," thereby envisioning one device in fluid communication with another inside of it.  The Federal Circuit also held its construction (allowing for a valve to reside within a pump) was consistent with the district court's constructions of the terms "pump" and "valve":

We see no reason why a device that moves fluid cannot contain another device that regulates flow within it.  A pump does not cease moving fluid--i.e., being a "pump"--just because an internal valve adjust fluid flow.

The defendant argued on appeal that the some of the patent's figures would be rendered nonsensical if the valve were integral to the pump.  The Federal Circuit rejected this argument, stating that "[p]atents do not need to include drawings of particular embodiments in order to claim them" and "a claim is not limited to inventions looking like those in the drawings."  The defendant also relied on Becton, Dickinson & Co. v. Tyco Healthcare Group, LP for the proposition that separately listed claim elements are presumptively distinct, but the Federal Circuit found Becton distinguishable because in that case the constructions themselves required separate structures and Becton "was also premised on the notion that an alternative construction would have rendered the claims nonsensical and would have rendered them obvious over the prior art."  The court found neither of those concerns were present in this case.