NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

NAZIR KHAN,

Plaintiff-Appellant

IFTIKHAR KHAN,

Plaintiff

v.

MERIT MEDICAL SYSTEMS, INC.,

Defendant-Appellee

______________________ 

2023-2329

______________________ 

Appeal from the United States District Court for the 

District of Utah in No. 2:21-cv-00337-HCN-CMR, Judge 

Howard C. Nielson, Jr.

______________________ 

Decided: July 16, 2024

______________________ 

NAZIR KHAN, Burr Ridge, IL, pro se.

 BRENT P. LORIMER, Lorimer Ip, PLLC, Midvale, UT, for 

defendant-appellee. Also represented by DAVID R. TODD,

THOMAS R. VUKSINICK, Workman Nydegger, Salt Lake 

City, UT.

______________________ 

Case: 23-2329 Document: 69 Page: 1 Filed: 07/16/2024
2 KHAN v. MERIT MEDICAL SYSTEMS, INC. 

Before MOORE, Chief Judge, LOURIE and STARK, Circuit 

Judges.

PER CURIAM.

Nazir Khan, owner of a patent directed to an arteriovenous shunt with several parts, filed a patent infringement 

suit against Merit Medical Systems, Inc. (“Merit Medical”) 

in the United States District Court for the District of Utah. 

Merit Medical counterclaimed for a declaratory judgment 

of non-infringement. The district court granted judgment 

for Merit Medical and against Khan. Khan appeals.1 We 

affirm.

I 

Mr. Khan owns U.S. Patent No. 8,747,344 (the “’344 

patent”). The ’344 patent is directed to a shunt used for 

hemodialysis and methods for using that shunt. Claim 13, 

the sole claim at issue here, recites in pertinent part (with 

emphasis added):

13. A system for performing hemodialysis on a patient comprising:

a. an arteriovenous shunt means comprising:

i. an arterial graft means comprising a body, a lead end and a terminal end, . . . ; and

ii. a-single lumen venous outflow 

catheter means comprising an 

1 The complaint was filed by Nazir Khan along with 

Iftikhar Khan. We granted Iftikhar Khan’s motion to be 

removed from the appeal. Our references throughout to 

“Khan,” therefore, are to Nazir Khan.

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KHAN v. MERIT MEDICAL SYSTEMS, INC. 3

intake end and depositing end . . . ; 

and

iii. a cuff means comprising an inlet 

and an outlet, wherein:

1. said cuff is disposed about

said terminal end of said subcutaneous graft; and

2. said cuff is disposed about

said intake end of said venous 

outflow catheter; and

3. wherein the cuff provides a secure fit for said arterial graft 

first diameter and said venous 

outflow catheter second diameter; and

b. a hemodialysis apparatus.

U.S. Patent No. 8,282,591 (the “’591 patent”) is the parent to the ’344 patent. Initially, the claims contained in the 

application that eventually yielded the ’591 patent required the “inlet” and “outlet” of a “cuff” to be “connected 

to” a graft and a catheter, respectively. See S. App’x 424-

27.2 These claims were rejected by a patent examiner as 

obvious over U.S. Patent No. 6,102,884 (“Squitieri”), which 

disclosed a device “connected to” a graft and a catheter. In 

response to the rejection, Khan proposed amended claims, 

which required that in addition to being “connected to” a 

graft and a catheter, the cuff also be “disposed about” the 

ends of the graft and catheter. After the examiner rejected 

these proposed amended claims, Khan appealed to the 

Board of Patent Appeals and Interferences (“Board”), 

2 We refer to the appendix attached to Khan’s Opening Brief as “App’x” and to the supplemental appendix filed 

by Merit Medical as “S. App’x.”

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4 KHAN v. MERIT MEDICAL SYSTEMS, INC. 

which found Khan’s distinction of Squitieri persuasive, 

concluding that the cuff of Khan’s amended claims “encircles” and “wraps around” the graft and catheter while 

Squitieri’s cuff was disposed “within” the graft and catheter. S. App’x 468-74, 705-06. The ’591 patent issued with 

the “disposed about” limitation in 2012. 

The ’344 patent issued in 2014. S. App’x 53. Similar 

to the prosecution leading to issuance of the ’591 patent, 

Khan originally proposed claims in which the cuff was 

broadly permitted to be “connected to” the graft and the 

catheter. After the claims of the ’591 patent were approved, Khan amended his proposed claims to require a 

“cuff means” instead of a “cuff”. After receiving a rejection 

based on Squitieri, Khan further amended the proposed 

claims to require that the cuff means be “disposed about” 

the graft and catheter. Only after this amendment were 

the claims allowed. 

Subsequently, Khan filed a reissue application for the 

’591 parent patent. In doing so, he sought claims that 

would have eliminated the “disposed about” limitation, explaining that he needed these broader claims in order to 

pursue infringement cases against companies, including 

Merit Medical, “who cannot be sued without [claims] having a connector with broadened scope so that [the accused] 

connector can be [found to infringe if it is] used in a disposed or non-disposed way.” S. App’x 374; see also S. App’x 

372-73 (“The patent owner cannot literally sue the infringer unless the cuff connector is broadened in scope to 

connect the graft and the catheter in different ways, disposed or non-disposed.”). The examiner rejected the reissue application, which the Board and then this court 

affirmed. See In re Khan, 722 F. App’x 1038, 1041 (Fed. 

Cir. 2018).

Merit Medical markets the accused product, the HeRO 

Graft, a shunt used for hemodialysis. It is undisputed that, 

as even Khan has described it, the HeRO Graft has a 

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KHAN v. MERIT MEDICAL SYSTEMS, INC. 5

connector that is “disposed within” or “in” the ends of the 

graft and catheter. S. App’x 70. This is in contrast to claim 

13 of the ’344 patent, which requires a connector “disposed 

about” the graft and catheter. 

Khan’s complaint alleged that the HeRO Graft infringes the ’334 patent literally and under the doctrine of 

equivalents, directly and indirectly, and willfully. The district court granted Merit Medical’s motion for summary 

judgment of non-infringement, as well as its counterclaim 

for declaratory judgment of non-infringement, after concluding that no reasonable juror could find that the accused 

HeRO Graft met the “disposed about” limitation, under any 

of Khan’s theories of infringement. 

After we dismissed a premature appeal by Khan, see 

Khan v. Merit Medical Systems, Inc., No. 23-1054 (Fed. Cir. 

Dec. 29, 2022), the district court entered final judgment of 

non-infringement and Khan timely appealed.3

II

We review a grant of summary judgment applying the 

law of the regional circuit, here the Tenth Circuit, which

reviews a grant of summary judgment de novo. See D

Three Enters., LLC v. SunModo Corp., 890 F.3d 1042, 1046 

(Fed. Cir. 2018). Summary judgment is appropriate if the 

movant “shows that there is no genuine dispute as to any 

3 The district court had jurisdiction under 28 U.S.C. 

§§ 1331 and 1338(a). We have jurisdiction under 28 U.S.C. 

§ 1295(a)(1). However, to the extent Khan is challenging 

the district court’s order requiring him to pay Merit Medical’s attorney fees, pursuant to 35 U.S.C. § 285, we lack jurisdiction, as the district court did not enter a final order 

with respect to attorney fees. See Elbit Sys. Land & C4I 

Ltd. v. Hughes Network Sys., LLC, 927 F.3d 1292, 1303-06 

(Fed. Cir. 2019). 

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6 KHAN v. MERIT MEDICAL SYSTEMS, INC. 

material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). 

Issues unique to patent law, such as claim construction 

and infringement, are reviewed according to Federal Circuit law. See AbbVie Deutschland GmbH & Co., KG v. 

Janssen Biotech, Inc., 759 F.3d 1285, 1295 (Fed. Cir. 2014). 

Infringement generally requires a factual determination as 

to whether all of the limitations of a claim, properly construed, are met by an accused device. See Akzo Nobel Coatings, Inc. v. Dow Chem. Co., 811 F.3d 1334, 1339 (Fed. Cir. 

2016) (“Infringement, whether literal or under the doctrine 

of equivalents, is a question of fact.”). “As such, it is amenable to summary judgment where, inter alia, no reasonable fact finder could find infringement.” Ethicon EndoSurgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 

(Fed. Cir. 1998). With respect to “questions of claim construction, including whether claim language invokes 35 

U.S.C. § 112[(f)], the district court’s determinations based 

on evidence intrinsic to the patent as well as its ultimate 

interpretations of the patent claims[,] are legal questions 

that we review de novo.” Williamson v. Citrix Online, LLC, 

792 F.3d 1339, 1346 (Fed. Cir. 2015). However, “[t]o the 

extent the district court, in construing the claims, makes 

underlying findings of fact based on extrinsic evidence, we 

review such findings of fact for clear error.” Id. 

III

Khan’s arguments on appeal are somewhat confusing. 

What is clear, however, is that the district court committed 

no error in granting summary judgment to Merit Medical

determining that its accused HeRO Graft product does not 

infringe claim 13 of the ’344 patent under any theory of infringement. We agree with Merit Medical and the district 

court that there is no genuine dispute of material fact and 

summary judgment of non-infringement is warranted.

Khan cannot prove literal infringement. Claim 13 requires a “cuff means” “disposed about” the graft and the 

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KHAN v. MERIT MEDICAL SYSTEMS, INC. 7

catheter. Khan does not challenge the district court’s (correct) construction that “disposed about” requires a cuff 

means that is “wrapped around, encircles, and covers the 

outside of the outlet end of an arterial graft and the inlet 

end of a venous outflow catheter.” App’x 4. It is further 

undisputed that the HeRO Graft has a cuff that is “disposed within” the graft and catheter and, therefore, is not 

literally “disposed about” the graft and catheter. See S. 

App’x 70. 

These realities are not dispositive, Khan contends, because he also asserts infringement under the doctrine of 

equivalents. Under the doctrine of equivalents, “a product 

or process that does not literally infringe upon the express 

terms of a patent claim may nonetheless be found to infringe if there is ‘equivalence’ between the elements of the 

accused product or process and the claimed elements of the 

patented invention.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 21 (1997). Among the several 

fatal deficiencies to Khan’s contention is that he, during 

prosecution of both the ’344 patent and the parent ’591 patent, amended his proposed claims and made arguments 

disclaiming cuffs that are connected within the graft and 

catheter, as in Squitieri.4 A patentee may not rely on the 

doctrine of equivalents to assert infringement against a device that falls within the scope of what the patentee disclaimed during prosecution. See Spectrum Int’l, Inc. v. 

Sterilite Corp., 164 F.3d 1372, 1378-79 (Fed. Cir. 1998) 

(“[B]y distinguishing the claimed invention over the prior 

art, an applicant is indicating what the claims do not 

4 Khan’s contention that he did not amend his claims 

during prosecution is plainly belied by the prosecution history. See S. App’x 468-74, 505-14, 516-21; see also App’x 20 

(“Plaintiff[’s] claim that [he] did not amend Claim 13 to 

overcome Squitieri by adding the ‘disposed about’ limitation is false.”).

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8 KHAN v. MERIT MEDICAL SYSTEMS, INC. 

cover.”) (internal quotation marks omitted). Moreover, 

Khan himself repeatedly explained during prosecution that 

he could not assert claim 13 of the ’344 patent against a 

device, including specifically the HeRO Graft, in which the 

cuff means was “disposed within” the graft and catheter. 

S. App’x 373-74, 348. His clear and unambiguous disclaimer of claim scope estops him from asserting that embodiments – such as the HeRO Graft and Squitieri – 

infringe. See Augustine Med., Inc. v. Gaymar Indus., Inc., 

181 F.3d 1291, 1299 (Fed. Cir. 1999) (“If sufficient to evince 

a clear and unmistakable surrender of subject matter, arguments made during prosecution may . . . estop an applicant from recapturing that surrendered matter under the 

doctrine of equivalents.”) (internal quotation marks omitted).

Khan also insists that claim 13 is a means-plus-function claim, governed by 35 U.S.C. § 112(f). We need not 

decide whether “cuff means” is a means-plus-function element because, as Merit Medical correctly points out, “even 

if ‘cuff means’ is a means-plus-function element, satisfaction of that element would not somehow make up for the 

absence of the ‘disposed about limitation.’” Response Br. at 

32. To raise a triable issue of infringement, Khan must 

produce sufficient evidence from which a reasonable juror 

could find that all of the elements of claim 13 are present 

in the HeRO Graft. See Odetics, Inc. v. Storage Tech. Corp., 

185 F.3d 1259, 1268 (Fed. Cir. 1999) (“Thus a claim limitation written in § 112[(f)] form, like all claim limitations, 

must be met, literally or equivalently, for infringement to 

lie.”). He has failed to adduce such evidence with respect 

to the “disposed about” limitation, so he cannot prove infringement even if all of the other limitations of his claim 

are present in the accused device.

Infringement is an element of induced, contributory, 

and willful infringement. See Novartis Pharms. Corp. v. 

Eon Labs Mfg., Inc., 363 F.3d 1306, 1308 (Fed. Cir. 2004); 

Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 94 (2016). 

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KHAN v. MERIT MEDICAL SYSTEMS, INC. 9

Therefore, Khan’s inability to prove infringement likewise 

dooms his other claims.

We have considered Mr. Khan’s other arguments and 

find them unpersuasive. We affirm the district court’s 

grant of Merit Medical’s motion for summary judgment of 

non-infringement.

AFFIRMED

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