The U.S. District Court for the Southern District of Indiana in Cook, Inc. v. Endologix, Inc. (Case No. 1:09-cv-01248) has stayed the litigation of Cook’s stent patents pending the outcome of the ex parte reexaminations of the patents-in-suit. U.S. Patent Nos. 5,755,777 and 5,035, 706 (now expired) have been asserted by Cook against Endologix’s Powerlink and IntuiTrak systems covering stent grafts and methods of their use in treatment of abdominal aortic aneurysms. The stay of litigation was granted despite the fact that the parties are direct competitors, Cook claimed that it was in a weak financial condition and Endologix’s sales of purported infringing sales were increasing. With the ’706 patent already expired and the ’777 patent set to expire in 2011, the patent owner will be precluded from amending or adding new claims during reexamination of the ’706 patent and the ’777 patent as well, if the reexamination of the ’777 patent is not concluded by the time the patent expires. In such circumstances, MPEP § 2258(I) suggests that patent claims in the reexamination will be interpreted in the USPTO in the same manner as a judge in the district court or International Trade Commission would do in litigation. However, as discussed in a prior blog post, a panel of the Board of Patent Appeals and Intererences concluded In Ex parte Personalized Media Communications, Inc., Appeals 2007-4044 and 2008-0334, Reexamination Control Nos. 90/006,697, 90/006,841, and 90/006,800 (BPAI, 2008) that claim language of an expired patent can be construed more narrowly than its ordinary and customary meaning only to the extent needed to resolve an ambiguity. If the claim term is clear, the panel concluded that the broad reasonable standard generally applied by the USPTO should be used. See also Ex parte Peng Tan, Appeal 2006-3235, Reexamination Control No. 90/006,696 (BPAI, 2008)(affirmed by the Fed. Cir.).
