Maquet Cardiovascular LLC v. Abiomed Inc. Et Al. (D. Mass 17-cv-12311).

Maquet accused Abiomed of infringing a patent covering intravascular blood pumps having a steerable cannula with a pigtail-shaped distal tip that aids in steering the cannula through a patient’s vascular system to the heart.

A considerable amount of activity took place this month, starting with a court ruling on Maquet’s motion for summary judgment on Abiomed’s written description and indefiniteness invalidity contentions.

The claims at issue comprised four components – a rotor to pump blood, a shroud to house the rotor, a cannula and a guide mechanism to deliver the pump to the heart. While not specifically recited, the parties agreed that there must be a motor to drive the rotor, and that there are only two available motors – one that is external to the patient’s body and connected to the rotor via a sheathed cable, or one that is integrated inside of the heart. The specification of the subject patent described only external motors. Abiomed, whose accused products all have integrated internal motors, contended that the patent should be deemed invalid under the written description and enablement requirements for claiming a genus of pumps without describing or enabling the internal motor species. Maquet moved for summary judgment on this issue, arguing that the drive mechanism is not a part of the claims.

Judge Saylor noted that the written description requirement applies only to what is claimed, and not to the entirety of the accused infringing product. He further noted that the Court had already effectively rejected this argument in a different case between the two parties involving a related patent, While in the prior case it was Abiomed moving for summary judgment, Judge Saylor noted that the prior determination that there were factual issues in dispute as to whether the written description requirement was met applied in this case as well, and denied Maquet’s motion in this regard.

Judge Saylor further noted that, while the pump drive mechanism was unclaimed, it was unquestioned that the claimed device was intended to work inside the heart of a living human patient, and required a drive mechanism that would both drive the pump and not kill the patient. Further, Abiomed’s expert testified that one of ordinary skill in the art would recognize the patent was intended to overcome problems with prior art exterior-driven pumps caused by their drive cables connecting the pump to the exterior power source, and that internal drive systems were unpredictable at the time the patent was filed, requiring more explicit description to meet the written description requirement. Given that the claims recited an “intravascular blood pump,” and that the patent only disclosed one mechanism for driving that pump, Judge Saylor concluded that the question of whether one of ordinary skill in the art would recognize that the claimed invention could utilize other types of drive mechanisms was a question of fact not suitable for summary judgment.

More on this case will shortly follow.