Case: 19-2145   Document: 55     Page: 1   Filed: 04/09/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

      EMED TECHNOLOGIES CORPORATION,
               Plaintiff-Appellant

                            v.

      REPRO-MED SYSTEMS, INC., DBA KORU
             MEDICAL SYSTEMS,
               Defendant-Appellee
             ______________________

                       2019-2145
                 ______________________

    Appeal from the United States District Court for the
 Eastern District of Texas in No. 2:15-cv-01167-JRG-RSP,
 Judge J. Rodney Gilstrap.
                  ______________________

                  Decided: April 9, 2020
                 ______________________

    WILLIAM PETERSON RAMEY, III, Ramey & Schwaller,
 LLP, Houston, TX, for plaintiff-appellant.

    ROBERT M. ISACKSON, Leason Ellis LLP, White Plains,
 NY, for defendant-appellee. Also represented by HENRY
 GABATHULER, MATTHEW L. KAUFMAN, HODA RIFAI-
 BASHJAWISH.
                 ______________________
Case: 19-2145      Document: 55   Page: 2    Filed: 04/09/2020




 2   EMED TECHNOLOGIES CORPORATION    v. REPRO-MED SYSTEMS,
                                                       INC.


     Before CHEN, SCHALL, and HUGHES, Circuit Judges.
 CHEN, Circuit Judge.
     Plaintiff EMED Technologies Corporation (EMED)
 sued Repro-Med Systems, Inc. (Repro-Med) for infringe-
 ment of U.S. Patent No. 8,961,476 (the ’476 patent). Fol-
 lowing claim construction, the district court granted Repro-
 Med’s motion for summary judgment of noninfringement.
 EMED appeals the noninfringement ruling. We affirm.
                        BACKGROUND
                      I. The ’476 Patent
     The ’476 patent describes medical needle devices with
 built-in safety structures “to protect a user from the sharp
 tip of the medical needle.” ’476 patent at Abstract. The
 specification describes various embodiments, and both par-
 ties refer to Figure 10 as depicting the relevant embodi-
 ment:




 Id. at Fig. 10.
     As shown in Figure 10, the safety device includes nee-
 dle 208 between a pair of opposing “wings” 216 and 218. To
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 EMED TECHNOLOGIES CORPORATION       v. REPRO-MED SYSTEMS,     3
 INC.


 protect a user from the needle, the wings rotate into a
 closed position in which the needle fits into a “groove” that
 is “sized for housing” the needle. Id. at col. 6, ll. 35–38; see
 also id. at claim 8. Although not labeled in Figure 10, the
 parties do not appear to dispute that the groove is depicted
 as the long and narrow recess in wing 216 on the left-hand
 side of Figure 10. In the closed position, the two wings are
 attached via mechanical fastener 1024, which includes pro-
 truding lip 1042 of wing 218 that engages with matching
 recess 1038 in the perimeter of opposing wing 216. Id. at
 col. 6, ll. 19–29.
     The sole claim at issue on appeal is claim 9. Claim 9
 depends from claim 8, which in turn depends from inde-
 pendent claim 1. Claim 1 is directed to a “device for pro-
 tecting a user from a sharp tip of a medical needle,” and
 recites, inter alia, a “pair of wings” and a “mechanical fas-
 tener” including a “lip” on at least one wing and a “mating
 portion” on at least the other wing. Id. at claim 1. Claim
 8 further recites a “groove having a size configured for
 housing at least a portion of the medical needle when the
 pair of wings are in the closed position.” Id. at claim 8.
 Claim 9 further specifies that the “groove is formed in a
 single one of the pair of wings.” Id. at claim 9. Claims 1,
 8, and 9 are reproduced below:
     1. A device for protecting a user from a sharp tip of
     a medical needle, the device comprising:
     a central body portion;
     the medical needle having a first end in fluid con-
     nection with a delivery tube, and a second end dis-
     tal from the central body portion including the
     sharp tip;
     a pair of wings, each wing of the pair of wings hav-
     ing an inner region and an outer region, the inner
     region of each wing in attachment to the central
     body portion, the outer region of each wing
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 4   EMED TECHNOLOGIES CORPORATION     v. REPRO-MED SYSTEMS,
                                                        INC.


     extending away from the central body portion, the
     pair of wings disposed in opposition to one another
     with the medical needle positioned therebetween,
     and the pair of wings being selectively positionable
     from an open position to a closed position, where
     the wings in the open position are spaced apart
     from each other to expose the medical needle to al-
     low placement of the medical needle into a treat-
     ment site and delivery of a medicinal fluid, and
     wherein the wings in the closed position cover the
     medical needle to protect against accidental needle
     stick injury from the medical needle;
     a mechanical fastener disposed on at least one wing
     of the pair of wings, the mechanical fastener con-
     figured to selectively attach the pair of wings to-
     gether with the medical needle positioned
     therebetween so as to protect against accidental
     needle stick injury from the sharp tip of the medi-
     cal needle;
     the mechanical fastener including a lip extending
     along at least a portion of a perimeter of at least
     one wing of the pair of wings, and a mating portion
     along a perimeter of at least one other wing of the
     pair of wings, and wherein the mating portion and
     the lip are configured to align the at least one wing
     relative to the at least one other wing in the closed
     position.
     8. The device in accordance with claim 1, wherein
     at least one of the pair of wings is formed with a
     groove having a size configured for housing at least
     a portion of the medical needle when the pair of
     wings are in the closed position.
     9. The device in accordance with claim 8, wherein
     the groove is formed in a single one of the pair of
     wings.
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 EMED TECHNOLOGIES CORPORATION    v. REPRO-MED SYSTEMS,    5
 INC.


 Id. at claims 1, 8, 9 (emphases added).
                  II. The Accused Products
     EMED accuses various models of Repro-Med’s safety
 needle devices (the Accused Products), which for the pur-
 poses of this appeal differ with respect to the exposed
 length of the needle as measured from the housing to the
 sharp tip. Repro-Med provides the following annotated di-
 agrams of the Accused Products:




 J.A. 113.
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 6   EMED TECHNOLOGIES CORPORATION     v. REPRO-MED SYSTEMS,
                                                        INC.


     Repro-Med also provides the following description of
 the Accused Products, which EMED does not dispute:
     [E]ach wing (E) has a needle facing surface that in-
     cludes a smooth rectangular section (A) interposed
     between two thinned areas (B and C). A first
     thinned area (B) is provided between the housing
     (D) and the wing (E), thereby allowing each wing
     (E) to move between open and closed positions. A
     second thinned area (C) is provided between the
     rectangular section (A) and the outer section (F) of
     the wing (E) bearing the plug (G) and the wing (E)
     bearing the socket (H). This second thinned area
     (C) allows the outer section (F) of each wing (E) to
     bend relative to its adjacent smooth rectangular
     section (A), allowing the plug (G) and the socket (H)
     to engage and thereby lock the wings together in
     the closed position about the medical needle. Each
     of the rectangular surface sections (A) have a ridge
     (I) adjacent the second thinned area (C), the ridge
     (I) extending perpendicular to the length (J) of the
     medical needle extending from the housing.
 Appellee’s Br. at 3–4.
                   III. Procedural History
      In 2015, EMED filed a complaint in the Eastern Dis-
 trict of Texas alleging infringement of the ’476 patent by
 the Accused Products. In response, Repro-Med petitioned
 for inter partes review (IPR), challenging claims 1–10 of
 the ’476 patent. The Board instituted IPR and subse-
 quently found claims 1–8 and 10 unpatentable. Repro-Med
 Sys., Inc. v. EMED Techs. Corp., IPR2015-01920, 2017 WL
 378978, at *1 (P.T.A.B. Jan. 12, 2017). This court affirmed,
 leaving dependent claim 9 as the sole claim at issue in the
 district court litigation. EMED Techs. Corp. v. Repro-Med
 Sys., Inc., 725 F. App’x. 1005, 1008 (Fed. Cir. 2018), cert.
 denied, 139 S. Ct. 418 (2018).
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 EMED TECHNOLOGIES CORPORATION      v. REPRO-MED SYSTEMS,    7
 INC.


      After the Board’s IPR decision, the district court con-
 ducted a Markman hearing and construed various terms
 relating to the “groove” of claim 9. Three of these claim
 terms are relevant to this appeal, and the parties do not
 contest the district court’s constructions of any of the claim
 terms. First, the district court construed “groove” to mean
 “a long narrow cut or depression.” EMED Techs. Corp. v.
 Repro-Med Sys., Inc., No. 2:15-cv-1167-JRG-RSP, 2019 WL
 1040604, at *9 (E.D. Tex. Mar. 4, 2019). As the district
 court noted, “[t]he parties agree that the recited ‘groove’ is
 a ‘long narrow’ something,” with EMED proposing “a long
 narrow cut” and Repro-Med proposing “a long narrow de-
 pression.” Id. at *8. The district court’s construction com-
 bined those two proposals. Second, the district court
 accepted the parties’ agreed-upon construction of the
 claimed groove “having a size configured for housing at
 least a portion of the medical needle” to mean “having a
 size designed for housing at least a portion of the medical
 needle that includes the sharp tip.” Id. at *7. Third, the
 district court also adopted the parties’ construction of
 “wherein the groove is formed in a single one of the pair of
 wings” to mean “wherein the groove is formed in only one
 of the pair of wings.” Id.
     Following claim construction, Repro-Med moved for
 summary judgment of noninfringement on all Accused
 Products under either literal infringement or the doctrine
 of equivalents. The magistrate judge recommended that
 summary judgment be granted in favor of Repro-Med.
      As to literal infringement, the magistrate judge ex-
 plained that the claimed groove must house the needle, but
 “[i]n the Accused Products, there is no space to house any-
 thing, much less a medical needle, in the mechanical fas-
 tener once the fastener is closed.” J.A. 19. Instead, the
 needle in the Accused Products is “merely positioned be-
 tween the wings,” and there was “no genuine dispute that
 the Accused Products’ alleged mechanical fastener does not
 meet the limitations of a groove.” Id. Moreover, the
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 8   EMED TECHNOLOGIES CORPORATION      v. REPRO-MED SYSTEMS,
                                                         INC.


 magistrate noted that “EMED points to no long narrow cut
 or depression on either wing of the Accused Products.” J.A.
 20.
     The magistrate judge further reasoned that applying
 the doctrine of equivalents to capture portions of the me-
 chanical fastener as the claimed “groove,” as urged by
 EMED, would vitiate the claim limitations “groove having
 a size configured for housing at least a portion of the med-
 ical needle when the pair of wings are in the closed posi-
 tion” and “wherein the groove is formed in a single one of
 the pair of wings.” J.A. 21–22.
     The district court adopted the magistrate judge’s rec-
 ommendation and granted summary judgment of non-in-
 fringement.    EMED appeals.        We have jurisdiction
 pursuant to 28 U.S.C. § 1295(a)(1).
                         DISCUSSION
      We review a grant of summary judgment in accord-
 ance with the law of the regional circuit, here the Fifth
 Circuit. Ineos USA LLC v. Berry Plastics Corp., 783 F.3d
 865, 868 (Fed. Cir. 2015). The Fifth Circuit reviews de
 novo a district court’s grant of summary judgment. Id.
 (citing Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261
 (5th Cir. 2007)).
                   I. Literal Infringement
     We apply a two-step analysis to determine whether ac-
 cused devices literally infringe a patent’s claims. First, the
 claims are “construed to determine their scope.” Telemac
 Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1330
 (Fed. Cir. 2001). Second, “the claims must be compared to
 the accused device.” Id. “Literal infringement exists when
 every limitation recited in the claim is found in the accused
 device.” Akzo Nobel Coatings, Inc. v. Dow Chem. Co., 811
 F.3d 1334, 1341 (Fed. Cir. 2016). “[O]n appeal from a grant
 of summary judgment of noninfringement, we must deter-
 mine whether, after resolving reasonable factual
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 EMED TECHNOLOGIES CORPORATION      v. REPRO-MED SYSTEMS,    9
 INC.


 inferences in favor of the patentee, the district court cor-
 rectly concluded that no reasonable jury could find in-
 fringement.” IMS Tech., Inc. v. Haas Automation, Inc., 206
 F.3d 1422, 1429 (Fed. Cir. 2000).
     Under the district court’s undisputed constructions,
 the claimed groove is a “a long narrow cut or depression”
 formed in “only one of the pair of wings,” 2019 WL 1040604,
 at *9, and “ha[s] a size designed for housing at least a por-
 tion of the medical needle that includes the sharp tip.” Id.
 at *7. Moreover, the groove must perform the specific func-
 tion of housing the needle “when the pair of wings are in
 the closed position.” ’476 patent at claim 8. Effectively, the
 claimed groove protects the user from the needle’s sharp
 tip while the wings are closed.
     The Accused Products lack a “groove” as claimed and
 protect the user from needle injuries in a different way.
 Where the claimed device houses the needle in a groove in
 one of the wings—i.e., a long narrow cut or depression—the
 needle in the Accused Products is merely positioned be-
 tween the two wings, as shown below.




 J.A. 13–14.
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 10 EMED TECHNOLOGIES CORPORATION v. REPRO-MED SYSTEMS,
                                                   INC.


     As shown in the far-right photograph above, the needle
 of at least one embodiment of the Accused Products ap-
 pears to reach the plug and socket structure when the
 wings are closed. But the plug and socket structure does
 not contain any long narrow cut or depression that houses
 the needle, as shown in the close-up images below:




 J.A. 14.
      EMED argues that the claimed groove is self-evident
 from the above photographs. According to EMED, the
 “groove is the depression on the left wing that is formed by
 the lip at the left and right edges of the left wing.” Appel-
 lant’s Br. at 8. We disagree. EMED’s theory fails to ac-
 count for the requirement that the groove “house[s]” the
 needle “when the pair of wings are in the closed position.”
 ’476 patent at claim 8. When the wings of the Accused
 Products are in the closed position, the surfaces of outer
 section (F) of the respective wings contact and mate with
 each other, thereby filling and eliminating any area in the
 left wing alleged to be a “groove” that may house the nee-
 dle. As the magistrate judge explained, “there is no space
 to house anything, much less a medical needle, in the me-
 chanical fastener once the fastener is closed.” J.A. 19 (em-
 phasis added). It may be true that the needle, in one
 accused embodiment, contacts the plug-socket structure in
 the closed position, but mere contact is not sufficient to
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 EMED TECHNOLOGIES CORPORATION     v. REPRO-MED SYSTEMS, 11
 INC.


 establish a genuine dispute that one of the wings might
 contain a groove “configured for housing” any portion of the
 needle.
     Nor is the area surrounding the plug on which EMED
 relies “a long narrow cut or depression” as required by the
 district court’s construction of “groove.” 2019 WL 1040604,
 at *9. The perimeter of this area appears to be roughly
 square, and the plug protrudes from the center of it.
 EMED’s briefing is markedly silent on how the region sur-
 rounding the plug could possibly be “a long narrow cut or
 depression.” Likewise, the report of EMED’s expert, Dr.
 Stoker, does not even attempt to explain how the Accused
 Products contain the claimed groove as construed. Thus,
 on the evidence in the record, we agree with the district
 court that there is no genuine dispute that the Accused
 Products do not contain the claimed groove.
                 II. 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 prod-
 uct or process and the claimed elements of the patented in-
 vention.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co.,
 520 U.S. 17, 21 (1997). But an argument under the doc-
 trine of equivalents fails if it “renders a claim limitation
 inconsequential or ineffective.” Akzo Nobel Coatings, 811
 F.3d at 1342. As the Supreme Court instructed, “if a theory
 of equivalence would entirely vitiate a particular claim el-
 ement, partial or complete judgment should be rendered by
 the court, as there would be no further material issue for
 the jury to resolve.” Warner-Jenkinson, 520 U.S. at 39 n.8.
     As we explained above, the photographic evidence of
 the Accused Products establishes that what EMED alleges
 is the claimed “groove”—i.e., the area surrounding the
 plug—is filled by the socket structure from the other wing
 when the wings are attached in the closed position. The
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 12 EMED TECHNOLOGIES CORPORATION v. REPRO-MED SYSTEMS,
                                                   INC.


 claims explicitly require that the “groove” must house the
 needle when the wings are in the closed position. ’476 pa-
 tent at claim 8. To extend the claimed “groove” to encom-
 pass structures that do not house the needle would vitiate
 that claim limitation. In that same vein, EMED did not
 and cannot plausibly argue, without vitiating the limita-
 tion, that the area to which it refers as a “depression” is
 insubstantially different from a structure that is long and
 narrow.
                        CONCLUSION
     We have considered EMED’s remaining arguments
 and find them unpersuasive. For the reasons stated above,
 we affirm the district court’s grant of summary judgment
 of noninfringement.
                       AFFIRMED
