LifeNet Health v. Tissue Regenix Woundcare, Inc. et al

RESPONSE Plaintiff's Responsive Claim Construction Brief to 49 Notice of Filing

W.D. Tex.April 26, 2018

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION LIFENET HEALTH, Plaintiff, v. NO: SA:17-CV-01061-OLG TISSUE REGENIX WOUNDCARE, INC., TISSUE REGENIX GROUP PLC, and COMMUNITY TISSUE SERVICES, Defendants. RESPONSIVE CLAIM CONSTRUCTION BRIEF OF PLAINTIFF LIFENET HEALTH Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 1 of 17 ii TABLE OF CONTENTS I. INTRODUCTION ...............................................................................................................1 II. CLARIFICATION TO APPLICABLE LEGAL STANDARDS ........................................2 A. Issue Preclusion Does Not Apply; Stare Decisis Does. ...........................................2 B. This Court Need Not Construe a Term Where the Parties Do Not Dispute its Proper Scope. ......................................................................................................3 C. Defendants Improperly Apply Extrinsic Evidence to Contradict the Intrinsic Record. .......................................................................................................4 III. ARGUMENT .......................................................................................................................5 A. The Court Need Not Construe the “Said One or More Plasticizers are Not Removed from Said Internal Matrix” Limitation. ...................................................5 B. Defendants Improperly Elevate Extrinsic Evidence Over the Claims and Read a Preferred Embodiment Into “Transplantation Into a Human”. ....................6 1. Defendants Misuse Extrinsic Evidence to Contradict the Intrinsic Record. .....................................................................................7 2. Defendants’ Construction Should be Rejected Because it Imports One Embodiment From the Specification Into the Claims. .........................8 C. Defendants Break the Lexicography Rule by Truncating the Express Definition of “Internal Matrix” From the Patent Specification. ............................10 IV. CONCLUSION ..................................................................................................................12 Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 2 of 17 iii TABLE OF AUTHORITIES Page(s) Cases Biotec Biologische Naturverpackungen GmbH & Co. KG v. Biocorp, Inc., 249 F.3d 1341, 1349 (Fed. Cir. 2001)........................................................................................3 Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313 (1971) ...................................................................................................................2 Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294 (Fed. Cir. 2003)..............................................................................................4, 7 CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)................................................................................10, 11 Digital-Vending Servs. v. Univ. of Phoenix, 672 F.3d 1270 (Fed. Cir. 2012)..................................................................................................9 Eolas Techs., Inc. v. Adobe Sys., Inc., No. 6:09-cv-446, 2011 WL 11070303 (E.D. Tex. 2011) ...................................................2, 3, 5 Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197 (Fed. Cir. 2010)..................................................................................................4 Healthrio, LLC v. Aetna, Inc., No. 12-cv-03229, 2014 WL 5473739 (D. Colo. Oct. 29, 2014) ........................................10, 11 Innova/Pure Water, Inc. v. Safari Water Filtration Sys., 381 F.3d 111 (Fed. Cir. 2004)....................................................................................................9 LifeNet Health v. LifeCell Corp., 837 F.3d 1316 (Fed. Cir. 2016)..........................................................................................2, 5, 6 LifeNet Health v. LifeCell Corp., No. 2:13-cv-3967, 2014 WL 3615985 (E.D. Va. 2010) ............................................................6 Markman v. Westview Instruments, 517 U.S. 370 (1996) ...................................................................................................................2 Mentor H/S, Inc. v. Med. Device All., Inc., 244 F.3d 1365 (Fed. Cir. 2001)..................................................................................................4 O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351 (Fed. Cir. 2008)..........................................................................................3, 5, 6 Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 3 of 17 iv Penda Corporation v. United States, 44 F.3d 967 (Fed. Cir. 1994)......................................................................................................2 PersonalWeb Techs., LLC v. Microsoft Corp., No. 6:12-cv-663, 2013 WL 4035358 (E.D. Tex. Aug. 6, 2013) ........................................10, 11 Pfizer, Inc. v. Teva Pharms. USA, Inc., 429 F.3d 1364 (Fed. Cir. 2005)..................................................................................................8 Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc)........................................................................ passim Phonometrics Inc. v. North Telecom Inc., 133 F.3d 1459 (Fed. Cir. 1998)..................................................................................................3 Texas Instruments, Inc. v. Linear Techs. Corp., 182 F. Supp. 2d 580, 590 (E.D. Tex. 2002) ...............................................................................3 Thorner v. Sony Comp. Entmt. Am. LLC, 669 F.3d 1362 (Fed. Cir. 2012)......................................................................................8, 10, 11 In re Trans Texas Holding Tech., 498 F.3d 1290 (Fed. Cir. 2007)..................................................................................................2 U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554 (Fed. Cir. 1997)..........................................................................................3, 5, 6 Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 4 of 17 1 I. INTRODUCTION LifeNet respectfully submits this response to Defendants’ Opening Claim Construction Brief (Doc. No. 49) filed April 5, 2018 (hereinafter, “TRX Br. at __”). This Court should adopt LifeNet’s proposals for claim construction of the first two terms at issue, the “said one or more plasticizers are not removed from said internal matrix” and the “transplantation into a human” terms, because stare decisis weighs in favor of not re-litigating issues of law previously decided by the Federal Circuit. The last term, “internal matrix”, requires routine application of the lexicographer rule, a tenet of claim construction that applies without question in this case. Defendants attempt to avoid stare decisis in several creative ways. First, Defendants ask this Court to sub-divide the single term previously considered by the Federal Circuit and reconsider each of the sub-parts anew. Defendants’ approach is not supported by the law and simply does not make sense. Specifically, Defendants misstate the preclusive effect of the prior litigation, and instead distract the Court with principles of issue preclusion not applicable here. Second, Defendants impute a construction to LifeNet—that “not removed” actually means “not completely removed”—where LifeNet stated that no construction is necessary, to try and manufacture a dispute where none exists. Third, Defendants violate the principles of claim construction set forth in Phillips and improperly seek to limit claim scope by relying on extrinsic evidence that directly contradicts the patent specification and importing an embodiment relating to bone grafts into claims plainly directed to soft tissue grafts. With respect to the last term, “internal matrix”, Defendants break the bedrock lexicographer rule by adopting only a portion of the express definition set out in the patent specification. For all of these reasons, LifeNet respectfully requests that the Court adopt its claim constructions for the disputed terms of the ʼ200 patent. Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 5 of 17 2 II. CLARIFICATION TO APPLICABLE LEGAL STANDARDS A. Issue Preclusion Does Not Apply; Stare Decisis Does. Defendants argue that LifeNet seeks to apply the doctrine of issue preclusion. TRX Br. at 6. But the correct legal principle for two of three disputed terms in this case is stare decisis, not issue preclusion. Where the Federal Circuit has decided an issue as a matter of law on appeal, subsequent district courts are not free to reconsider the same point of law—it should be considered “a thing decided.” Markman v. Westview Instruments, 517 U.S. 370, 390-91 (1996) (“[T]reating interpretive issues as purely legal will promote (though it will not guarantee) intrajurisdictional certainty through the application of stare decisis . . . .”); see also Eolas Techs., Inc. v. Adobe Sys., Inc., No. 6:09-cv-446, 2011 WL 11070303, at *1 (E.D. Tex. 2011). Defendants’ cases regarding issue preclusion are inapposite. See In re Trans Texas Holding Tech., 498 F.3d 1290, 1297 (Fed. Cir. 2007) (“Trans Texas Holding”).1 Trans Texas Holding involved claim constructions from a district court and later, the Board, relating to the same patent. Just like here, issue preclusion did not apply against the Patent Office because it was not a party in the prior district court litigation. Id. But Trans Texas Holding does not address the preclusive effect of the prior LifeCell litigation on this Court for at least two reasons: (1) the district court’s Markman decision in Trans Texas Holding was not affirmed by the Federal Circuit (or even appealed, in view of a settlement), so it was not decided by the appeals court as a matter of law; and (2) a district court and the Board do not apply the same standard in construing claims. As such, the question necessarily was different in the two fora—counseling against applying preclusion. 1 Trans Texas Holdings relies upon the Supreme Court’s discussion of issue preclusion from Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971), as well as the Federal Circuit’s decision in Penda Corporation v. United States, 44 F.3d 967 (Fed. Cir. 1994), so these cases rise and fall together. See 498 F.3d at 1297-98. Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 6 of 17 3 Defendants’ reliance on Phonometrics Inc. v. North Telecom Inc., 133 F.3d 1459, 1464 (Fed. Cir. 1998) is similarly misplaced. See TRX Br. at 6. In Phonometrics, issue preclusion applied from the first Federal Circuit decision to the panel in the second Federal Circuit proceeding because the prior court was considering a different claim limitation than the prior panel. 133 F.3d at 1465. But one issue in the instant case is nothing like that in Phonometrics. Here, Defendants are seeking construction of the exact same phrase(s) that the Federal Circuit previously considered, but declined to construe. Finally, the only case that Defendants cite addressing stare decisis is another district court case from the Eastern District of Texas. See TRX Br. at 6 (citing Texas Instruments, Inc. v. Linear Techs. Corp., 182 F. Supp. 2d 580, 590 (E.D. Tex. 2002)). This case, however, was decided nine years before the Eolas decision. See Doc. No. 51, Opening Claim Construction Brief of Plaintiff LifeNet Health (“LifeNet Br. at __”) at 5-6 (quoting Eolas, 2011 WL 11070303, at *1-*2). Eolas performed a “thorough analysis of the case law,” and its reasoning is on point here. 2011 WL 11070303, at *1. B. This Court Need Not Construe a Term Where the Parties Do Not Dispute its Proper Scope. Defendants ask this Court to construe a term (the “not removed” term) over which there is no dispute regarding the plain meaning in order to manufacture a non-infringement position, but this approach ignores Federal Circuit precedent on when claim construction is necessary. “[D]istrict courts are not (and should not be) required to construe every limitation present in a patent’s asserted claims.” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (emphasis in original) (citing, e.g., Biotec Biologische Naturverpackungen GmbH & Co. KG v. Biocorp, Inc., 249 F.3d 1341, 1349 (Fed. Cir. 2001) (deciding that disputed issue was the proper application of a claim term to an accused process rather the scope of the Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 7 of 17 4 term); U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) (Claim construction “is not an obligatory exercise in redundancy.”)); see also Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010) (upholding district court’s rejection of defendant’s proposed construction, and finding that no construction is necessary). Where a term is used in accordance with its plain meaning, the Court is not required to re-characterize it using different language. See Mentor H/S, Inc. v. Med. Device Alliance, Inc., 244 F.3d 1365, 1380 (Fed. Cir. 2001). This Court should decline Defendants’ invitation to construe every term they request. C. Defendants Improperly Apply Extrinsic Evidence to Contradict the Intrinsic Record. Defendants misstate the governing Phillips standard as it relates to the use of extrinsic evidence. TRX Br. at 8. The Federal Circuit has “viewed extrinsic evidence in general as less reliable than the patent and its prosecution history in determining how to read claim terms[.]” Phillips, 415 F.3d at 1318. And although extrinsic evidence may be “useful to the court, [ ] it is unlikely to result in a reliable interpretation of patent claim scope unless considered in the context of the intrinsic evidence.” Id. at 1319; Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1300 (Fed. Cir. 2003) (“While dictionaries and treatises are useful resources in determining the ordinary and customary meaning or meanings of disputed claim terms, the correct meaning of a word or phrase is informed only by considering the surrounding text.”). Defendants’ use of extrinsic evidence in this case to contradict the specification is a prime example of the reasons the Federal Circuit issued this cautionary instruction to District Courts. Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 8 of 17 5 III. ARGUMENT A. The Court Need Not Construe the “Said One or More Plasticizers are Not Removed from Said Internal Matrix” Limitation. LifeNet’s Construction Defendants’ Construction No construction necessary. “no plasticizer is removed from the internal matrix prior to transplantation” Principles of stare decisis govern the outcome here. See LifeNet Br. at 5-6; Eolas Techs., Inc., 2011 WL 11070303, at *2. The Federal Circuit has already determined that the combined phrases “said one or more plasticizers are not removed from said internal matrix,” and “transplantation into a human” do not require construction. LifeNet Health v. LifeCell Corp., 837 F.3d 1316, 1324 (Fed. Cir. 2016) (“LifeCell’s discontent with the [ . . . ] phrase ‘said one or more plasticizers are not removed from [an] internal matrix of [the] plasticized soft tissue graft prior to implantation into a human’ is not sufficient to give rise to an O2 Micro violation.”) (“LifeCell”). The Federal Circuit went on to state that “[e]ven if we were to reach the construction of the non- removal limitation, we see no error with the court’s construction under the principles of Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc).” Id. at 1324, n.1 (emphasis added). Defendants provide no justification to sub-divide a term that the Federal Circuit previously construed. Defendants’ apparent efforts to create a non-infringement defense is not sufficient to overcome stare decisis. Even if this Court were to revisit the question of whether claim construction is necessary for the “not removed” term, the briefing makes clear that there is no dispute between the parties regarding what that term means. Accordingly, this Court need not construe the “not removed” term. O2 Micro, 521 F.3d at 1362; U.S. Surgical Corp., 103 F.3d at 1568. Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 9 of 17 6 Defendants, however, are attempting to manufacture a dispute where none exists by claiming that LifeNet is somehow “reinterpreting” the prior construction in seeking a construction of “not completely removed”. See TRX Br. at 9. Defendants selectively quote from the decision by the Eastern District of Virginia, but fail to include the court’s conclusion that is italicized below: Therefore, a combination of the plain language, prosecution history, and the expert declaration all led the Court to conclude that “not removed” means that no plasticizer is removed, and that based on the plain meaning of “not removed” no further construction of the term was necessary. LifeNet Health v. LifeCell Corp., No. 2:13-cv-3967, 2014 WL 3615985, at *7 (E.D. Va. 2010) (emphasis added); cf. TRX Br. at 8. Furthermore, Defendants point to the Federal Circuit’s decision—and again, leave out the relevant portion—that the Federal Circuit found no error with the District Court below. TRX Br. at 11 (citing LifeCell, 837 F.3d at 1324 n.1). LifeNet merely asks this Court to follow LifeCell’s lead—no construction is necessary for a term that is easily understood by a person of skill in the art. B. Defendants Improperly Elevate Extrinsic Evidence Over the Claims and Read a Preferred Embodiment Into “Transplantation Into a Human”. LifeNet’s Construction Defendants’ Construction No construction necessary. “transplantation inside a human” Defendants argue that grafts “transplanted into a human” require that no portion of the transplanted graft can be on the surface of the body. The argument is premised on portions of the patent specification discussing bone grafts. Bone grafts are, of course, transplanted “inside” a patient. But Defendants ignore the repeated teachings of the specification directed to soft tissues, including “cadaveric skin” (’200 patent at 8:5-6), that is used to replace injured or damaged skin of a patient. Furthermore, the evidence will show that even skin grafts are Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 10 of 17 7 transplanted “into” a human, even as Defendants use that term.2 Defendants’ argument here make no sense given the express teachings of the patent that soft tissues include those used for skin transplants.3 The proper reading of the claim term—as recognized by the Federal Circuit— is that the claim term requires no construction at all. 1. Defendants Misuse Extrinsic Evidence to Contradict the Intrinsic Record. Defendants’ proposed construction of “transplantation into a human” upends the principles of claim construction. Where, as here, the term is clear, no construction is necessary. O2 Micro, 521 F.3d at 1362; U.S. Surgical Corp., 103 F.3d at 1568. The Federal Circuit also found that the district court properly declined to construe the “not removed” and “transplantation into a human” term. LifeCell, 837 F.3d at 1324. Moreover, the intrinsic record provides no evidence to alter the prior decisions that no construction is required, and in fact, support that logical conclusion. See LifeNet Br. at 12-13. Defendants skip over these points to present an argument premised on extrinsic evidence. TRX Br. at 12-13. A battle over dictionary definitions only proves LifeNet’s point: the Court should look first to the intrinsic record construe the term “transplantation into a human”. Phillips, 415 F.3d at 1318-19; Brookhill-Wilk, 334 F.3d at 1300. Defendants located select dictionary definitions to support its non-infringement position that “into” means only “inside,” such that the term excludes skin grafts. Other definitions contained within Defendants’ own 2 Defendants’ own website reflects this understanding: “DermaPure maintains the structure and biochemical characteristics of native dermis, fully integrating into the wound bed after application. It provides a scaffold into which the recipient’s cells can grow, becoming vascularized and supporting the generation of a new epithelial layer, ultimately regenerating native skin.” See https://www.tissueregenixus.com/products/wound-care/dermapure#dermapure- overview, last accessed Apr. 26, 2018 (emphasis added). 3 A prior jury awarded LifeNet $34.7 million for LifeCell’s infringement of the asserted claims of the ’200 patent relating to skin transplants. Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 11 of 17 8 evidence refutes their contention. See Doc. No. 50, Huang Decl. at Ex. 10 (also defining “into” as “to a point of contact with: against”); id. at Ex. 11 (also defining “into” as “against”). At least one other popular dictionary does not even include Defendants’ preferred definition of “inside”. See, e.g., Exhibit A, Webster’s Ninth New Collegiate Dictionary (© 1989) (defining “into” in several ways, including as “to a position of contact with: against” and “used as a function word to indicate entry, introduction, insertion, superposition, or inclusion”). Thus, there is nothing “straightforward” about Defendants’ construction, nor does LifeNet seek to “rewrite the claim language.” TRX Br. at 12. To the contrary, LifeNet seeks only to do what the prior court and Federal Circuit did, and it is Defendants that seek to rewrite the term to manufacture a non-infringement position. 2. Defendants’ Construction Should be Rejected Because it Imports One Embodiment From the Specification Into the Claims. Defendants’ argument violates a golden rule of claim construction—limitations should not be read into claims absent a clear and unambiguous intent by the applicant to do so. Thorner v. Sony Comp. Entmt. Am. LLC, 669 F.3d 1362, 1366 (Fed. Cir. 2012) (“We do not read limitations from the specification into claims; we do not redefine words. Only the patentee can do that.”); Phillips, 415 F.3d at 1323 (“[A]lthough the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments.”). Moreover, courts must consider the specification in its entirety in interpreting the claims, as one skilled in the art would do. Pfizer, Inc. v. Teva Pharms. USA, Inc., 429 F.3d 1364, 1373-75 (Fed. Cir. 2005). Here, there is no evidence whatsoever that LifeNet clearly and unambiguously intended to narrow the claims to bone grafts—in fact, the evidence is directly to the contrary. Thorner, 669 F.3d at 1366. Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 12 of 17 9 The Court should look to the claims themselves, because claim construction “must begin and remain centered on the claim language itself[.]” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., 381 F.3d 111, 115-16 (Fed. Cir. 2004); see also Digital-Vending Servs. v. Univ. of Phoenix, 672 F.3d 1270 (Fed. Cir. 2012) (must look to the “surrounding claim language” to ascertain the proper scope). Here, the asserted claims also use the term “soft tissue graft,” which LifeNet expressly defined as including “cadaveric skin” (’200 patent, at 8:5-6). Defendants already agreed to the construction of the other term “plasticized soft tissue graft,” which expressly includes “skin.” See Doc. No. 48, Ex. B (parties agree that “plasticized soft tissue graft” means “a load-bearing and/or non-load bearing soft tissue product, including skin, pericardium, dura mater, fascia lata, and a variety of ligaments and tendons . . . .” (emphasis added)). Defendants’ proposed construction of “inside” would conflict with the agreed meaning of these other terms in the same claims. Defendants also point to later-issued patents in the family to suggest some sort of claim differentiation argument about the asserted claims. TRX Br. at 12-13. Aside from Defendants’ misapplication of that legal doctrine to independent claims in separate patents, those claims do not address how such plasticized soft tissue grafts are to be handled prior to transplantation into a human. The fact that later issued patents do not contain the exact same limitations as the asserted independent claims has no bearing on LifeNet’s intent with respect to the claims at issue in this case. In the end, Defendants’ entire argument in support of its construction is based on the incorrect premise that whether the graft is “inside” or “onto” matters at all. As shown by the intrinsic record, it does not matter, and no construction of the term is required. Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 13 of 17 10 C. Defendants Break the Lexicography Rule by Truncating the Express Definition of “Internal Matrix” From the Patent Specification. LifeNet’s Construction Defendants’ Construction “the intercellular substance of soft tissue that includes, for example, ligaments and tendons, including collagen and elastin fibers and base matrix substances” “the intercellular substance of soft tissue” It is well settled law that a patentee can act as her own lexicographer and define a term any way she wants, so long as it is clearly set forth in the patent specification. See Thorner, 669 F.3d at 1365 (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)); see also Phillips, 415 F.3d at 1316. LifeNet’s inventors could not have been more explicit, given that “internal matrix” is described in the “definitions” section of the patent specification. ’200 patent at 6:59-65. Defendants break the lexicography rule by arguing that a portion of that express definition does not apply. See TRX Br. at 15. In an attempt to support that position, Defendants cite to a number of cases that stand for the uncontroversial principle of claim construction that a court should not construe a claim term using a non-exhaustive list of examples. TRX Br. at 16 (collecting cases). None of these cases supplant the lexicographer rule, however, because the patentees in those cases did not act as a lexicographer to define the term in question using certain examples as LifeNet did here. In fact, only two of these cases involve the lexicography rule and both support LifeNet’s construction for “internal matrix.” See PersonalWeb Techs., LLC v. Microsoft Corp., No. 6:12-cv-663, 2013 WL 4035358, at *4 (E.D. Tex. Aug. 6, 2013) (considering the express definition of “data item(s)”); Healthrio, LLC v. Aetna, Inc., No. 12-cv-03229, 2014 WL 5473739, at *2 (D. Colo. Oct. 29, 2014) (considering the express definition of “payor claims data”). Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 14 of 17 11 In each of PersonalWeb Technologies and Healthtrio, the patentee defined the term in question (underlined below)—and in the next sentence of the specification—provided a non- exhaustive list of examples using the word “may” (italicized below). The ’200 patent, by contrast, incorporated the examples into the express definition of the term “internal matrix” without any permissive language: ’220 Patent: “internal matrix” PersonalWeb Techs.: “data item(s)” Healthtrio: “payor claims data” By the term “internal matrix” is intended for the purposes of the present invention, the spongy epiphysis of bones, the intercellular substance of bone tissue including collagen fibers and inorganic bone salts; or in soft tissue, the intercellular substance of such soft tissue including for example ligaments and tendons, including collagen and elastin fibers and base matrix substances. ’220 patent at 6:59-65. In general, the terms “data” and “data item” as used herein refer to sequences of bits. Thus a data item may be the contents of a file, a portion of the file, a page in memory, an object in an object oriented program, a digital message, a digital scanned image, a part of a video or audio signal, or any other entity which can be represented by a sequence of bits. PersonalWeb Techs., 2013 WL 4035358, at *3 (quoting asserted patent at 1:54–60). The term “payor claims data” is intended to be broadly interpreted to include any patient related data associated with the payment of health related services. Typically, payor claims data 220 may be available from (or sent to) payor(s).... For example, the payor claims data 220 may include, but are not limited to International Classification of Diseases (“ICD”) codes, Current Procedural Terminology (“CPT”) codes, National Drug Code (“NDC”) codes, treating physicians, treatment dates, manually entered data, or other data formats. A wide variety of information may be obtained through the payor claims data 220. Healthtrio, 2014 WL 5473739, at *2 (quoting asserted patent at 11: 50-64). LifeNet clearly defined the term “internal matrix” in the specification. The patentee’s entire definition thus controls. Thorner, 669 F.3d at 1365 (quoting CCS Fitness, 288 F.3d at 1366); see also Phillips, 415 F.3d at 1316. Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 15 of 17 12 IV. CONCLUSION For the reasons set forth above and in LifeNet’s Opening Claim Construction Brief (Doc. No. 51), LifeNet respectfully requests that the Court adopt LifeNet’s proffered constructions of the disputed claim terms and reject Defendants’ constructions, as they fail to comport with the controlling decision and intrinsic evidence. Dated: April 26, 2018 Respectfully submitted, /s/ Abby L. Parsons John H. Barr, Jr. Abby L. Parsons KING & SPALDING LLP 1100 Louisiana Street, Suite 4000 Houston, Texas 77002 Telephone: (713) 751-3294 Facsimile: (713) 751-3290 jbarr@kslaw.com aparsons@kslaw.com William J. Sauers KING & SPALDING LLP 1700 Pennsylvania Avenue NW, Suite 200 Washington, D.C. 20006 Telephone: (202) 737-0500 Facsimile: (202) 626-3737 wsauers@kslaw.com Michael J. Songer Michael H. Jacobs CROWELL & MORING 1001 Pennsylvania Ave. NW Washington, D.C. 20004 Telephone: (202) 624-2500 msonger@crowell.com mjacobs@crowell.com Counsel for Plaintiff LifeNet Health Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 16 of 17 13 CERTIFICATE OF SERVICE I hereby certify that on the 26th day of April, 2018, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, and notice of the same will be electronically distributed to all registered users. /s/ Abby L. Parsons Abby L. Parsons Case 5:17-cv-01061-OLG Document 53 Filed 04/26/18 Page 17 of 17