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Claim Construction in LASIK Patent Litigation

In Neev v. Abbot Medical Optics, Inc., C.A. No. 09-146-RBK (D. Del. Mar. 26, 2012), the plaintiff was the owner and inventor of a patent encompassing a laser used in LASIK corrective vision surgery.  He brought suit against the defendant for its sale of a product used in LASIK, and the defendant asserted invalidity and noninfringement counterclaims.  After holding a Markman hearing, the Court adopted several claim constructions the parties had agreed upon and construed the following terms itself:

  • “operating the source and manipulating the beam parameters”
  • “manipulating beam parameters”
  • “manipulating parameters of the beam”
  • “adjusting characteristics of the electromagnetic radiation beam”
  • “varying at least one of the following beam parameters”
  • “interaction energy transients”
  • “preparing the target region of the target material by spatially or temporally varying at least one of an absorption characteristic of the material or a scattering characteristic of the material at the target region”
  • “operating the source at a pulse repetition rate greater than 0.1 pulses per second until a target volume in the target region has been modified”
  • “allowing interaction energy transients caused by the electromagnetic pulses to substantially decay so that material modification is effected”
  • “allow interaction energy transients caused by the pulsed electromagnetic radiation beam to decay sufficiently such that the material can be modified”
  • “cumulative residual thermal energy left in the material by a pulse train”
  • “controlled, variable rate material modification”
  • “highly controllable, variable rate material removal”
  • “target material”
  • “target region”
  • “material removal by a continuously emitting, continuous wave (CW) beam of electromagnetic radiation”
  • “continuously emitted electromagnetic radiation”
  • “redistributing the beam in time and space to form at least one modified beam comprising a plurality of pulses”
  • “plasma”

The Court adopted the defendant’s construction of “target region” and “target material,” but adopted the plaintiff’s construction of all other terms.  The Court also denied the defendant’s motion to strike parts of the plaintiff’s opening Markman brief, finding that the sections in question, which explained the state of the known research in the field as well as the plaintiff’s state of mind at the time of the plaintiff’s invention, were relevant and were not hearsay.

Neev v. Abbot Medical Optics, Inc., C.A. No. 09-146-RBK (D. Del. Mar. 26, 2012).

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