ITC Finds Canady Endoscopic Probes Do Not Infringe

Posted on | May 20, 2008 | No Comments

2008-1358 ERBE Elektromedizin v. ITC
ITC 337-TA-569

ERBE appeals from the ITC’s decision that Canady Technology does not infringe 5,720,745 and that ERBE did not show a domestic industry for the ’745.

ERBE filed its § 337 complaint alleging that respondent Canady infringed the ’745 patent (and Supp. Trademark 2,637,630) by importing certain endoscopic probes for use in argon plasma coagulation systems.  Claim 1 is illustrative:

1. An electrosurgical unit for achieving coagulation of tissue, comprising:

an endoscope having:

a proximal end and an opposing distal end, and

a
plurality of working channels extending between the two ends, each
channel having a predetermined diameter and having an opening at each
end;

a flexible, hollow tube having a
longitudinal axis disposed in one of the working channels of the
endoscope, the tube having a diameter which is less than the diameter
of the channel through which it is inserted, the tube including:

a distal end and an opposing proximal end, each end of the tube having an opening, the tube having an inside and an outside,

the
tube positioned within the endoscope such that a portion of the tube
including the opening at the distal end of the tube protrudes beyond
the opening at the distal end of the endoscope and such that a gas
stream exits from the opening at the distal end of the tube in order to
establish an inert gas atmosphere between the distal end of the tube
and the region of the tissue to be coagulated, and

an
electrode for ionizing the inert gas positioned inside the tube and
offset from the opening at the distal end of the tube a predetermined
minimum safety distance, such that the electrode can not come in
contact with the tissue;

a
source of pressurized ionizable, inert gas connected to the opening at
the proximal end of the tube and pressurized such that a stream of gas
flows from the source, through the tube and exits through the opening
at the distal end of the tube at a low flow rate of less than about 1
liter/minute;

optical means
positioned within a second working channel of the endoscope and
protruding sufficiently from the opening at the distal end of the
second channel of the endoscope to view the distal end of the tube and
the tissue to be coagulated; and

the
portion of the tube protruding from the distal end of the endoscope
positioned such that the longitudinal axis of the tube is arranged
sidewardly of the area of tissue to be coagulated.

Unfortunately, the ALJ’s initial determination setting forth the findings and conclusions on claim construction, non-infringement, validity, and domestic industry is confidential and not publicly accessible.  However, from other, public filings the apparent issues on appeal are the ITC’s construction of:

• "predetermined minimum safety distance" to require that the ceramic end piece is not part of the tube;
• "working channel" to exclude channels identified in the patent as working channels;

and the ITC’s conclusion of fact that:

• certain accused probes were not used at certain hospitals in the US;
• certain accused probes were not used with endoscopes containing a plurality of working channels;
• certain accused probes do not have a tip recessed a predetermined minimum safety distance;
• insufficient evidence was proffered that certain accused probes were used "sidewardly"; and
• that ERBE’s own probes used in the US do not practice the ’745 and do not establish a domestic industry. 

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