UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marine Polymer Technologies, Inc.

v. Civil No. 06-cv-100-JD

HemCon, Inc.

PROCEDURAL ORDER

Both Marine Polymer Technologies, Inc. and HemCon, Inc. have

filed motions for summary judgment on infringement. Their

motions demonstrate that another issue of claim construction must

be addressed before considering the motions for summary judgment.

Previously, the parties filed memoranda on claim

construction for the disputed terms “biocompatible poly-ß-164-Nacetylglucosamine and biocompatible poly-ß-164-glucosamine.” A

Markman hearing was held on March 27, 2008. HemCon argued that

the disputed terms included limitations of microalgae sources, a

determined range of the number of monsaccharides, and a molecular

weight. Marine Polymer focused on the meaning of

“biocompatible.” 

The primary dispute for claim construction was whether the

‘245 patent was limited to material made from microalgae, as

HemCon urged. HemCon argued that the correct meaning of the

disputed terms was:

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the species of material harvested from plant microalgae

(microalgae, e.g., diatoms, are living aquatic

organisms that capture light energy through

photosynthesis, using it to convert inorganic

substances into organic matter), and more particularly

a species of microalgae that is free of protein,

substantially free of other organic contaminants,

substantially free of inorganic contaminants, has about

4,000 to about 150,000 N-acetylglucosamine

monosaccharides covalently attached in a ß-164

conformation, and a minimum weight of 800,000 daltons

[for poly-ß-164-N-acetylglucosamine and 640,000 daltons

for poly-ß-164-glucosamine]. 

Although HemCon included the requirement that the material be

free of protein, it focused on the microalgal source rather than

the level of contaminants. The disputed terms were construed to

mean: polymers with their stated compositions (poly-ß-164-Nacetylglucosamine and poly-ß-164-glucosamine) and with low

variability, high purity, and no detectable biological reactivity

as determined by biocompatibility tests.

 For purposes of summary judgment, HemCon argues that its

products contain detectable amounts of protein and, therefore, do

not meet the “high purity” standard for “biocompatible poly-ß164-N-acetylglucosamine and biocompatible poly-ß-164-

glucosamine.” The meaning of “high purity” was not disputed or

further defined as part of the claim construction process. While

HemCon included the protein limitation in its proposed

construction, without any developed argument, Marine Polymer

mentioned in passing that another patent in the family of fifteen

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patents related to the ‘245 patent claims p-GlcNAc that is free

of protein. 

HemCon now contends, for purposes of summary judgment, that

detectable protein in its accused products precludes

infringement. Infringement analysis is a two-step process that,

first, requires a determination of the meaning and scope of the

asserted claims and, second, requires a comparison of the

properly construed claims to the accused device. Monsanto Co. v.

Syngenta Seeds, Inc., 503 F.3d 1352, 1356 (Fed. Cir. 2007). 

Therefore, before addressing the summary judgment motions on

infringement, the court must determine whether the p-GlcNAc of

the asserted claims in the ‘245 patent includes a limitation that

the claimed invention must be free of protein. See ‘245 patent,

col. 9, ll. 40-55. 

Conclusion

The parties shall file claim construction memoranda on the

issue of whether the asserted claims include a limitation that

the p-GlcNAc of the invention must be free of detectable protein

contaminants. The court will determine, based on the briefs,

whether a Markman hearing is necessary. Because of the time

necessary to address the claim construction issue, and, depending

on the result, the need to supplement or refile the motions for

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summary judgment, the trial in this case currently scheduled for

the period beginning on July 21, 2009, will be continued to a

date to be determined after claim construction has been resolved.

Both parties shall file claim construction memoranda on or

before May 1, 2009. If appropriate, each party may file a

response on or before May 15, 2009.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 26, 2009

cc: Julie M. Baher, Esquire

Daniel R. Johnson, Esquire

Joseph A. Kromholz, Esquire

Richard B. McNamara, Esquire

Lynda Q. Nguyen, Esquire

Brian M. Poissant, Esquire

Daniel D. Ryan, Esquire

Ognian V. Shentov, Esquire

Jonathan M. Shirley, Esquire

Daniel E. Will, Esquire

Leigh S. Willey, Esquire

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