NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-1481

SCANTIBODIES LABORATORY, INC., Plaintiff-Appellant,

v. IMMUTOPICS, INC. and IMMUTOPICS INTERNATIONAL, LLC, Defendants-Appellees.

E. Anthony Figg , Rothwell, Figg, Ernst & Manbe ck, P.C., of Washington, DC, argued for plaintiff-appellant. With him on the brief was Nancy J. Linck . Of counsel on the brief were Rod S. Berman and Brian W. Kasell , Jeffer, Mangels, Butler & Marmaro, LLP, of Los Angeles, California. Matthew A. Newboles , Stetina Brunda Garred & Br ucker, of Aliso Viejo, California, argued for defendants-appell ees. With him on the brief was Benjamin N. Diederich . Of counsel were William J. Brucker ; and Irene C. Keyse-Walker , Tucker, Ellis & West LLP, of Cleveland, Ohio. Appealed from: United States District Cour t for the Central Distr ict of California Senior Judge Mariana R. PfaelzerNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-1481

SCANTIBODIES LABORATORY, INC., Plaintiff-Appellant,

v. IMMUTOPICS, INC. and IMMUTO PICS INTERNATIONAL, LLC, Defendants-Appellees.

Appeal from the United States Dis trict Court for the Central Dis trict of California in case no. 04-CV-8871, Judge Mariana R. Pfaelzer.

__________________________ DECIDED: May 6, 2010

__________________________ Before MICHEL, Chief Judge , PLAGER and MOORE, Circuit Judges

. MICHEL, Chief Judge

. Scantibodies Laboratory, Inc. (“Scantibodie s”) appeals a decision of the United States District Court for the Central District of California enterin g summary judgment of noninfringement in favor of Immutopics, Inc. and Immutopics International, LLC (“Immutopics”). We affirm for the reasons below. BACKGROUND U.S. Patent No. 6,689,566 (“the ’566 patent ”) issued to Scantibodies on February 10, 2004. Scantibodies filed its complaint against Immutopics on October 26, 2004. In November 2007, Immutopics filed a first summa ry judgment motion for noninfringement.Prior to ruling on the motion, the district cour t concluded that construction of claims was required and a one-day Markm an hearing took place on Ma rch 24, 2008. A claim construction order was subsequently issued on May 1, 2008, and on May 16, 2008, the court issued its first order granting Immu topics’ summary judgment motion for noninfringement because the accused antibody did not meet the “specifi c for” limitation. On November 24, 2008, the district cour t declined to certify the partial claim construction for immediate appeal, issued an amended claim construction order, and invited the parties to provide comments. On February 9, 2009, the di strict court issued a second amended claim construction order. Thereafter, Immut opics again moved for summary judgment of noninfringement, which the district court granted on April 23, 2009, per a revised order. Scantibodies subsequently filed this appeal. The ’566 patent is directed to methods and devices for detecting levels of whole (1-84) PTH in a biological sample. The te chnology of the ’566 patent can differentiate between whole (1-84) PTH and interfering non-(1-84) PTH fragments. This appeal focuses on the construction of claim 5 and the district court’s grant of summary judgment of noninfringement of claim 5 and the claims dependent on it. Claim 5 recites:
5. A method for measuring an amount of whole par athyroid hormone in a sample comprising: a) adding to a sample a labeled antibody or antibody fragment specific for an initial peptide sequence of whole parathyroid hormone wherei n said initial peptide sequence consists of VAL-SER-GLU-ILE-GLN-LEU-MET (SEQ ID NO: 3), and wherein at least four amino acids in said initial peptide sequence are part of a reactive portion to said labeled antibody; b) allowing said labeled antibody to bind to whole parathyroid hormone present, thereby forming a complex; and c) measuring the amount of said labeled complex to measure the amount of whole parath yroid hormone in said sample while not detecting an interfering non-(1-84) parathyroid hormone fragment

.

2009-1481 2’566 Patent at col. 9 ll. 34-49 (emphasis a dded). The district court construed the two underlined terms as follows. First, “not detec ting an interfering non-(1-84) parathyroid hormone fragment” was construed by the distri ct court to mean having no detectable binding to an interfering non-(1-84) parathyroid hormone fragment. Scantibodies appeals the district court’s construction and the finding of noninfringement based on this construction. Second, “specific for” was def ined as “having a measurable affinity for and detectable binding to an epi tope having at least four am ino acids of the seven in SEQ ID NO. 3. In addition, the affinity is hi gher than the affinity for any other epitope of the whole PTH sequence. ” Scantibodies does not appeal t he district court’s construction of the term “specific for,” but disputes the district court’s application of the term to Immutopics’ antibody. DISCUSSION A. Standard of Review We review a district cour t’s claim construction rulings de novo

. Cybor Corp. v. FAS Techs. , 138 F.3d 1448, 1451 (Fed. Cir. 1998) (e n banc). Likewise, we review a district court’s grant of summary judgment de novo

. Revolution Eyewear, Inc. v. Aspex Eyewear, Inc. , 563 F.3d 1358, 1365 (Fed. Cir. 2009). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc. 56(c). B. Claim Construction Scantibodies argues that the district c ourt erred by construing the phrase “not detecting an interfering non-(1-84) parathy roid hormone fragment” to mean having no detectable binding to an interfering non -(1-84) parathyroid hormone fragment.

2009-1481 3According to Scantibodies, the phrase should instead be construed to mean that the level of detection of such fragments must be below that which would interfere with providing a clinically meaningful assay for whole PTH and that adequately differentiates whole PTH from an interfering non-(1-84) PTH fragment. We begin our analysis with the pl ain language of the claim. See Phillips v. AWH Corp. , 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en ba nc) (“We have frequently stated that the words of a claim ‘are generally give n their ordinary and cu stomary meaning.’”) (quoting Vitronics Corp. v. Conceptronic, Inc. , 90 F.3d 1576, 1582 (Fed. Cir. 1996) (en banc)). Here, the plain meaning of “not detecting” is fully consistent with the district court’s construction requiring “no detectable bi nding.” None of Scant ibodies’ arguments to the contrary are convincing. First, Scantibodies argues that the distri ct court erred because the complete absence of cross-reactivity is not necessary for a clinical immunoassay to meet the stated goals and purpose of the invention. Scantibodies contends that a person having ordinary skill in the art would not use such an impossibly stringent definition of “not detecting” because such a definit ion would exclude all antibodies, includ ing its preferred embodiment. However, the district court’s defin ition of “not detecting” was not as strict as Scantibodies alleges. The district cour t indicated that its construction of “not detecting” was based on its constr uction of another limitation, “ does not specifically bind to an interfering non-(1-84) parathyroid hormone fragment,” which Scantibodies does not dispute. The court construed the n on-binding limitation to mean having no measurable affinity for and no detectable binding to an interfering non-(1-84) parathyroid hormone fragment, and further expl ained that no measurable affinity meant

2009-1481 4having an association constant of less than 10^5 liter/mole. While this level is less than what is clinically significant, it is not “no binding whatsoever.” Second, Scantibodies argues that its own constructi on of “not detecting an interfering non-(1-84) parathyroid hormone fr agment” is consistent with Scantibodies’ clinical use and product literatur e. One inventor of the ’566 patent, T homas L. Cantor, explained in a declaration that the chem istry of immunoassays is complex and measurements of whole PTH in blood serum are not abs olutes because immunoassay science has not evolved to the point wher e PTH can be determined with absolute precision. Cantor further noted that none of the invention described in the patent, or Scantibodies’ whole PTH assays, absolutel y detect PTH without any detectable crossreactivity, but that any such degree of cr oss-reactivity was not significant. Such detection was described in Sc antibodies’ product literature as having “no crossreactivity.” We cannot give Cantor’s self-serving test imony much weight because it is, at best, relatively weak extrinsi c evidence. The use of l anguage in marketing materials often means something quite different from the language used in a patent. Moreover, the inventors of the ’566 patent chose to draft the claims with the narrow term “not detecting” when there were alternatives that were less confining. If the inventors wanted “not detecting” to have a different meaning based on the clinical or marketing context, they could have drafted the claims di fferently. For example, the inventors could have chosen a term with a broader meaning or have assigned “not detecting” a unique definition different than its ordinary meaning by clearly expr essing that intent in the written description. See Phillips , 415 F.3d at 1313. Here, t he inventors elected to do

2009-1481 5neither. Because of this choice, a compet itor reading the ’566 pa tent would not know that “not detecting” means something other than its ordinary meaning and would not be forewarned that it might infringe. In addition, Scantibodies’ claim that no PTH assay can absolutely detect PTH without detectable cross-reactivity is contradicted by the 2001 Gao et al. article that lists among its authors both inventor s of the ’566 patent. The Gao article disclosed an Nterminal PTH antibody that would only bind to PTH if the first amino acid was present, and further, did not detect fragments of (7- 84) PTH at concentrations of 10,000 pg/ml, far beyond any clinically relevant level. The antibody could specif ically bind to whole PTH while not specifically binding to the in terfering (7-84) PTH fragment, illustrating that it would have been possible to m eet the district court’s construction using then-existing technology. Thus, we hold that the di strict court correctly construed “not detecting an interfering non-(1-84) parathyroid hormone fragment” to mean having no detectable binding to an interfering non-(1- 84) parathyroid hormone fragment. C. Infringement Scantibodies effectively concedes that, under the district court’s construction, the accused Immutopics antibody does not meet t he “not detecting an interfering non-(1-84) parathyroid hormone fragment” lim itation. Indeed, there is uncontroverted evidence that Immutopics’ accused antibody det ectably binds to interfering non-(1-84) PTH fragments. This evidence includes Immutopics’ product information materials, Scantibodies’ admissions and tests showing binding to interfering non-(1-84) fragments, and published third party data.

2009-1481 62009-1481 7 Thus, the district court correctly enter ed summary judgment of noninfringement of claim 5 and its dependent claims because Immutopics’ antibody does not meet the “not detecting an interfering non-(1-84) parat hyroid hormone fragment” limitation. Since summary judgment of noninfringement may be based on the failure to meet any one claim limitation, we do not need to reach the issue of whether the district court correctly determined that Immutopics’ antibody did not meet the “s pecific for” limitation. CONCLUSION For the reasons stated above, we affirm t he district court’s entry of summary judgment of noninfringement. COSTS No costs.