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Judge Burke recommends denying motion for summary judgment of noninfringement

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In W.L. Gore & Associates, Inc. v. C.R. Bard Inc. et al., C.A. No. 11-515-LPS-CJB (D. Del. Apr.  7, 2015), Magistrate Judge Christopher J. Burke recommended denying defendants’ (“Bard”) motion for summary judgment of noninfringement as to the “affixing” limitation found in the asserted patents.  As an initial matter, Judge Burke found that “[i]n light of the claim construction issues that have arisen on summary judgment with respect to the language of claim 33 (and the other asserted claims), it is clear to the Court that further clarification as to the ‘affixed’/’affixing’ limitations is required.” Id. at 12. Judge Burke clarified that for the “affixed” or “affixing” claim limitations to be met, “the [ePTFE] covering(s) must contact the stent surface, and must be secured to the stent surface.” Id. at 14. Judge Burke explained that contrary to Bard’s position, “a jury could find the ‘affixed’/’affixing’ limitations satisfied by a stent sufficiently enveloped in coverings (that are themselves bonded together through stent openings) such that those coverings are held sufficiently tight to the stent surface,” as pointed to by plaintiff (“Gore”).  Id. at 16.  Judge Burke ultimately concluded that “the existing, remaining dispute between the parties–whether Gore’s evidence demonstrates that a sufficiently secure connection exists between the accused products’ ePTFE coverings and stent surface–is a fact question that a jury should resolve.” Id. at 17. Additionally, after reviewing the parties’ arguments and drawing all reasonable inferences in the light most favorable to Gore, Judge Burke found that “genuine issues of material fact preclude summary judgment on the basis of the doctrine of equivalents.” Id. at 24.

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