Bone Care Int’l, LLC v. Pentech Pharma., Inc., No. 08 C 1083, Slip Op. (N.D. Ill. June 4, 2010) (Dow. J.)
Judge Dow construed the claims in this patent infringement action related to methods for preventing bone mass loss using vitamin D. As an initial matter, the Court held that the person of ordinary skill in the court was someone in the field of kidney disease with either a Ph.D. or an M.D., adopting plaintiffs’ construction. Defendants’ argued that both a Ph.D. and an M.D. were required, but the parties agreed that the definition did not impact their respective arguments. Of particular interest, the Court construed the following terms:
- The Court declined to construe “lowering” or “lowered” because the parties did not contest that the constructions impacted claim scope, and their ordinary meanings were sufficient.
- “Serum parathyroid hormone” was construed as “blood concentrations of parathyroid hormone.”
- “Suffer from” was construed as “having” consistent with its ordinary meaning. The dictionary drew a distinction between suffering from and suffering with, which is associated with pain or discomfort from a condition.
- “Hyperparathyroidism” was construed consistent with medical dictionaries as “increased (i.e., above normal) secretion of PTH by the parathyroid gland."
- “End stage renal disease” was construed as “a disease wherein the patients’ kidneys no longer function at a level necessary to sustain life and thus require chronic dialysis or kidney transplantation.”
- “Effective Amount” was construed as “an effective amount of 1a-OH-vitamin D2 to lower and maintain lowered blood concentrations of PTH with a lower incidence of hypercalcemia than is associated with the extant conventional Vitamin D3 treatments.”