UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marine Polymer Technologies, Inc.

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

HemCon, Inc.

O R D E R

HemCon, Inc. asks the court to “clarify” its order denying

HemCon’s motion for reconsideration of the order granting Marine

Polymer Technologies, Inc.’s motion for summary judgment on

literal infringement. HemCon contends that the court failed to

address the “elution test” limitation in claims 12 and 20 of the

‘245 patent in determining that HemCon’s products infringe those

claims. Marine Polymer objects to the motion.

In its motion for summary judgment, Marine Polymer

demonstrated that HemCon’s accused bandage infringed each element

of the asserted claims, including the elution test limitation in

claims 12 and 20. Marine Polymer provided evidentiary support

for its factual statement that the accused bandage met the

elution test limitation. HemCon did not challenge Marine

Polymer’s evidentiary support or provide an opposing showing with

record support. Therefore, HemCon is deemed to have admitted

that its accused bandage meets the elution test limitation. See

LR 7.2(b)(2).

Case 1:06-cv-00100-JD Document 188 Filed 03/03/10 Page 1 of 5
In addition, although HemCon raised the elution test

limitation issue in its motion for reconsideration, it did not

make the same argument in its objection to summary judgment. 

Elution testing was mentioned in a footnote in HemCon’s objection

to Marine Polymer’s motion for summary judgment in the section

addressing detectable levels of protein. HemCon states in its

memorandum, addressing protein: “The sworn and uncontradicted

testimony of defense witness Simon McCarthy repeatedly makes this

point [that the chitosan of the accused products contains

protein].” Doc. 83, Page 13. Then, footnote 4 states: “An

elution test cannot be performed on the HemCon® Bandage, because

it is water soluble (unlike the material disclosed in the ‘245

Patent, which is water insoluble).” HemCon did not argue there,

as it does now, that its product does not infringe claims 12 and

20 because of a lack of elution testing but instead relied on its

theory that its products include protein.

As part of the discussion of anticipation of the ‘245 patent

by the 3M TEGASORB dressing, HemCon stated in its objection that

3M had shown its dressing was “substantially equivalent to other

commercially available hydrocolloid dressings” and in a footnote

clarified that the “absorption characteristics” of the dressing

prevented an elution test and “[l]ikewise, an elution test cannot

be performed on the HemCon® Bandage, because it is water soluble

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Case 1:06-cv-00100-JD Document 188 Filed 03/03/10 Page 2 of 5
(unlike the material disclosed in the ‘245 Patent, which is water

insoluble).” Page 31, n.7. Again, however, the elution test

issue was not raised to counter infringement.

In a matter as complex as infringement of a patent claiming

certain formulations of biocompatible poly-ß-164-Nacetylglucosamine and biocompatible poly-ß-164-glucosamine,

claims, defenses, theories, and arguments must be articulated and

be presented with proper support in order for them to be

considered by the court. HemCon has not done so with its elution

test defense to infringement. As in all cases, matters referred

to in a perfunctory manner, such as a mere mention in a footnote,

without developed argumentation are deemed to be waived. See

Glacken v. Dickhaut, 585 F.3d 547, 551 (1st Cir. 2009); Romero v.

Colegio de Abogados de P.R., 204 F.3d 291, 296 n.4 (1st Cir.

2000). In the patent context, “[i]f a party fails to raise an

argument before the trial court, or presents only a skeletal or

undeveloped argument to the trial court, we may deem that

argument waived on appeal . . . .” Fresenius USA, Inc. v. Baxter

Int’l, Inc., 582 F.3d 1288, 1296 (Fed. Cir. 2009) (internal

quotation marks omitted).

A motion for reconsideration is not a proper vehicle to

raise a new theory that was not presented in opposition to

summary judgment. See Crawford v. Clarke, 578 F.3d 39, 44 (1st

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Case 1:06-cv-00100-JD Document 188 Filed 03/03/10 Page 3 of 5
Cir. 2009). Therefore, HemCon’s elution test theory was not

properly raised in this court.

Even if the question of the elution test limitation had been

properly raised, Marine Polymer has demonstrated that the issue

lacks merit. HemCon now argues that its products are water

soluble and, therefore, cannot be subjected to elution testing,

which is a limitation in claims 12 and 20. Marine Polymer has

shown, based on the testimony of HemCon’s witness, Kevin Hawkins,

and Marine Polymer’s expert witness, Dr. Robert Langer, that the

cytotoxicity test, used by Marine Polymer to prove infringement,

and the elution test are the same or at least equivalent. 

Therefore, at best, HemCon’s elution test theory would result in

a conclusion that its products infringe claims 12 and 20 under

the doctrine of equivalents, rather than literally. See Amgen

Inc. v. F. Hoffman-LA Roche Ltd., 580 F.3d 1340, 1382 (Fed. Cir.

2009) (providing elements of infringement under the doctrine of

equivalents).

At this late stage in the litigation, no purpose would be

served by reversing summary judgment on literal infringement on

claims 12 and 20 only to reinstate the judgment under the

doctrine of equivalents. That result would be particularly

unjust given HemCon’s waiver of the elution test theory in the

context of opposing summary judgment on literal infringement. 

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Case 1:06-cv-00100-JD Document 188 Filed 03/03/10 Page 4 of 5
Therefore, even if considered on the merits, the elution test

theory does not undermine summary judgment that HemCon’s products

are infringing.

Conclusion

For the foregoing reasons, the defendant’s motion for

clarification (document no. 181) is granted to the extent that

the order denying reconsideration is clarified as follows:

the defendant waived the issue of the elution test limitation for

purposes of determining infringement, and even if the issue had

not been waived, the defendant’s accused products meet that

limitation. The motion for clarification is otherwise denied. 

 SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 3, 2010

cc: Julie M. Baher, Esquire

Garet K. Galster, Esquire

Daniel R. Johnson, Esquire

Heather E. Krans, Esquire

Joseph A. Kromholz, 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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