Free Motion for Summary Judgment - District Court of California - California

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F.T. Alexandra Mahaney, State Bar No. 125984 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 12235 El Camino Real, Suite 200 San Diego, CA 92130 Telephone: (858) 350-2300 Facsimile: (858) 350-2399 Email: [email protected] Bruce R. Genderson (admitted pro hac vice) Aaron P. Maurer (admitted pro hac vice) Rachel Shanahan Rodman (admitted pro hac vice) Adam D. Harber (admitted pro hac vice) WILLIAMS & CONNOLLY LLP 725 Twelfth St. NW Washington, DC 20005 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 Attorneys for Defendant and Counterclaimant SENORX, INC. IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION HOLOGIC, INC., CYTYC CORP., and HOLOGIC L.P., Plaintiffs, v. SENORX, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 08-CV-0133 RMW DEFENDANT SENORX, INC.'S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY ('142 PATENT, CLAIMS 1 AND 8)

SENORX, INC., Counterclaimant, v. HOLOGIC, INC., CYTYC CORP., and HOLOGIC L.P., Counterdefendants.

Date: June 25, 2008 Time: 2:00 p.m. Courtroom: 6, 4th Floor Judge: Hon. Ronald M. Whyte

DEFENDANT SENORX, INC.'S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY

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NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on June 25, 2008 at 2:00 p.m. (in connection with the claim construction hearing scheduled in this matter), or as soon thereafter as may be heard, in the courtroom of the Honorable Ronald M. Whyte, Defendant SenoRx, Inc. ("SenoRx") will and hereby does move for partial summary judgment that claims 1 and 8 of U.S. Patent No. 6,482,142 (the "'142 patent") are invalid for failure to comply with the provisions of 35 U.S.C. §§ 101 and 112. SenoRx requests the Court hold claims 1 and 8 of the '142 invalid on the grounds that, as a matter of law, they are inoperable and not enabled since the radiation source recited in claim 1 cannot simultaneously be "within" the claimed outer surface and "spaced apart" from the claimed volume defined by that surface. As claim 8 depends from claim 1, it incorporates all of claim 1's limitations (and flaws as to operability and enablement) as a matter of law. SenoRx brings the present motion for summary judgment because SenoRx believes that by resolving this pure legal issue (as a matter of claim construction), the Court can dispose of all issues regarding these claims. This motion is made pursuant to Fed. R. Civ. P. 56, Civil Local Rule 56-1, and Judge Whyte's Standing Orders. SenoRx bases its motion upon this Notice of Motion and Motion; the accompanying Memorandum of Points and Authorities In Support Thereof; and the Declaration of Adam Harber In Support of SenoRx's Motion For Partial Summary Judgment of Invalidity.

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MEMORANDUM OF POINTS AND AUTHORITIES This Court is familiar with the claims and prosecution history of the '142 patent, having addressed them in its order denying Plaintiffs' motion for a preliminary injunction. See Order Denying Plaintiffs' Motion for Preliminary Injunction ("PI Order") at 13-19. In the preliminary injunction proceedings, as here, SenoRx argued that claim 1 of the '142 patent is invalid because claim 1 requires an impossible configuration. In its PI Order, this Court stated that SenoRx's argument "does raise some significant question regarding whether the claim drafter made a mistake that may be fatal to the claim," id. at 16, and found "it to be a very close call as to whether SenoRx has made a substantial showing that the claim is vulnerable to an assertion of invalidity," but declined to decide invalidity on the record before it. Id.; see also id. at 21 ("There remains a question whether claim 1 of the '142 patent is invalid as indefinite, given the ambiguity regarding the `volume' versus `surface' distinction set forth above with regard to the limitation requiring the radiation source to be `located so as to be spaced apart from the apparatus volume' defined by the outer surface.") The answers to the questions raised by the Court in its PI Order, as discussed below, mandate a finding that claim 1, and claim 8 that depends from claim 1, are invalid. SenoRx has submitted its Markman brief relating to the construction of the critical "apparatus volume" limitation of claim 1 simultaneously with this brief, and will not readdress claim construction here. As the undisputed record plainly demonstrates, claim 1 is inoperable and not enabled under the proper claim construction of "apparatus volume." Therefore, this Court should enter summary judgment of invalidity of claim 1 and dependent claim 8. ISSUE TO BE DECIDED Whether claims 1 and 8 of the '142 patent are invalid on the grounds that they are inoperable and not enabled. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact
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and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed. Cir. 1998). Summary judgment is a useful tool to promote judicial economy and avoid unnecessary trials. Scripps Clinic & Res. Found., v. Genentech, Inc., 927 F.2d 1565, 1570 (Fed. Cir. 1991). ARGUMENT A. A Claim Must Be Operable and Enabled To Be Valid.

Operability and enablement are "closely related" questions. In re Swartz, 232 F.3d 862, 863 (Fed. Cir. 2000). The utility requirement of 35 U.S.C. § 101 mandates that any patentable invention be useful and, accordingly, the subject matter of the claim must be operable. See Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1571 (Fed. Cir. 1992). Utility is a question of fact. In re Cortright, 165 F.3d 1353, 1356 (Fed. Cir. 1999). The enablement requirement of 35 U.S.C. § 112, ¶ 1 requires that the specification adequately discloses to one skilled in the relevant art how to make the claimed invention without undue experimentation. See Genentech, Inc. v. Novo Nordisk, A/S, 108 F.3d 1361, 1365 (Fed. Cir. 1997). Lack of enablement is a question of law, based on underlying factual inquiries. See Nat'l Recovery Techs., Inc. v. Magnetic Separation Sys., Inc., 166 F.3d 1190, 1194 (Fed. Cir. 1999). "If a patent claim fails to meet the utility requirement because it is not useful or operative, then it also fails to meet the how-to-use aspect of the enablement requirement." Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1358 (Fed. Cir. 1999). B. Claim 1 As Written Is Not Enabled and Is Inoperable.

The operability and enablement of claim 1 depend on the construction of the term "threedimensional apparatus volume." SenoRx has addressed the construction of this term in its Markman briefing, submitted concurrently with this motion for summary judgment. Claim 1 of the '142 patent recites: An interstitial brachytherapy apparatus for treating target tissue surrounding a surgical extraction comprising:

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an expandable outer surface defining a three-dimensional apparatus volume configured to fill an interstitial void created by the surgical extraction of diseased tissue and define an inner boundary of the target tissue being treated; a radiation source disposed completely within the expandable outer surface and located so as to be spaced apart from the apparatus volume, the radiation source further being asymmetrically located and arranged within the expandable surface to provide predetermined asymmetric isodose curves with respect to the apparatus volume.1 See Ex. 1 ('142 patent), Claim 1 (emphases added).2 The claim thus first introduces a number of components of the claimed apparatus (the expandable outer surface, the three-dimensional apparatus volume, the interstitial void/surgical cavity, and the target tissue), and explains their relationship to each other. The claim then introduces a further component ­ the radiation source ­ and describes where the radiation source is located relative to the other components of the device so as to achieve the desired result of asymmetric dosing. The first element of the claim clearly states that the three-dimensional apparatus volume is defined by the expandable outer surface of the claimed apparatus, i.e., it is the three-dimensional region of space within the expandable outer surface. The second element requires that the radiation source is: 1) inside the expandable outer surface, and 2) spaced apart from the apparatus volume. If claim 1 is construed according to its plain meaning, the claim is inoperable and not enabled because it is impossible for the radiation source to be within the outer surface and, at the same time, also to be "located so as to be spaced apart from the apparatus volume" defined by the outer surface. See Raytheon Co. v. Roper Corp., 724 F.2d 951, 956 (Fed. Cir. 1983) ("Because it is for the invention as claimed that enablement must exist, and because the impossible cannot be enabled, a claim containing a limitation impossible to meet may be held invalid under § 112.

Claim 8 further requires: "The apparatus of claim 1, wherein the expandable outer surface is sufficiently rigid to deform the target tissue into the shape of the expandable outer surface, causing the predetermined asymmetric isodose curves to penetrate into the target tissue to a prescribed depth." All citations to exhibits are to exhibits to the Declaration of Adam D. Harber in Support of Defendant SenoRx's Motion for Partial Summary Judgment of Invalidity, submitted herewith.
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Moreover, when a claim requires a means for accomplishing an unattainable result, the claimed invention must be considered inoperative as claimed and the claim must be held invalid under either § 101 or § 112 of 35 U.S.C."). There is no factual dispute about this conclusion; it rests solely on claim construction. As claim construction is a matter of law to be decided by the Court, Markman v. Westview Instruments, Inc., 517 U.S. 370, 388 (1996), summary judgment of non-enablement and inoperability should be entered if the Court adopts SenoRx's proposed construction, which is discussed at pages 18 to 23 of SenoRx's Markman brief submitted herewith. C. Plaintiffs Cannot Rewrite Claim 1 To Preserve Its Validity.

"It is a `bedrock principle' of patent law that `the claims of a patent define the invention.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (citation omitted). "Because the patentee is required to `define precisely what his invention is'" in the claims, "it is `unjust to the public, as well as an evasion of the law to construe [the claims] in a manner different from the plain import of [their] terms.'" Id. (quoting White v. Dunbar, 119 U.S. 47, 52 (1886)). The Patent Act's requirement that a patentee "particularly point[] out" and "distinctly claim[] the subject matter" of his invention, 35 U.S.C. § 112, "`guard[s] against unreasonable advantages to the patentee and disadvantages to others arising from uncertainty as to their [respective] rights.'" Athletic Alternatives, Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1581 (Fed. Cir. 1996) (quoting Gen. Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 369 (1938)) (alteration in original). Thus, patent claims serve a critical public policy: "`to apprise the public of what is still open to them.'" Id. (quoting McClain v. Ortmayer, 141 U.S. 419, 424 (1891)). When the "issued patent contains clear structural limitations, the public has a right to rely on those limits in conducting its business activities." Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1425 (Fed. Cir. 1997). The legitimate and reasonable construction of claims serves the same interest; if patent claims could be construed to mean virtually anything ­ even the opposite of a plain definition contained therein, as Plaintiffs' arguments would have it ­ the public notice function of patents would be eviscerated. See White v. Dunbar, 119 U.S. at 51 (the claims are not "a nose of wax, which may be turned and
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twisted in any direction"). Thus, it is well-settled law that neither Plaintiffs nor this Court may rewrite the claims through claim construction, even in the face of a flaw in the claim that renders it invalid. "[C]ourts may not redraft claims, whether to make them operable or to sustain their validity." Chef Am. v. Lamb-Weston, Inc., 358 F.3d 1371, 1374 (Fed. Cir. 2004). Even "a nonsensical result does not require the court to redraft the claims." Process Control, 190 F.3d at 1357. In other words, the Federal Circuit has instructed courts to construe the claims in accordance with their plain meaning and other intrinsic evidence, as appropriate, and then to let the chips fall where they may. This is exactly what the Federal Circuit has done in a number of cases, even when this means that the preferred embodiment is not within the scope of the claims, cf., Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583-84 (Fed. Cir. 1996), and even when this results in invalidity. For instance, in Allen Engineering Corp. v. Bartell Industries, Inc., 299 F.3d 1336, 134849 (Fed. Cir. 2002), the Federal Circuit held certain claims invalid, refusing to rewrite them even in light of a patent specification that clearly was to the contrary. The claim in Allen contained a limitation of a "gear box [pivoting] only in a plane perpendicular to said biaxial plane." Id. at 1349. The description in the patent, on the other hand, described the structure in contrary terms, stating that the "gearbox . . . cannot pivot in a plane perpendicular to the biaxial plane." Id. Much as Plaintiffs do here, Allen argued that one of skill in the art would understand that the term "perpendicular" in the claim should be read to mean "parallel" in light of the description of the preferred embodiments of the invention in the specification, which were all parallel. Id. The Federal Circuit, however, rejected Allen's attempts to twist the plain meaning of the claim language based on the embodiments disclosed in his specification: "Allen stretches the law too far. It is not our function to rewrite claims to preserve their validity." Id. In Chef America, the claim concerned a method of making dough products involving heating an oven to a temperature between 400° F and 850° F. 358 F.3d at 1372. The claim, however, recited "heating the resulting . . . dough to a temperature in the range of about 400° F to
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850° F," instead of the oven. Id. (emphasis added). This temperature, the Federal Circuit noted, would burn the dough to "a crisp." Id. The Federal Circuit refused to read "dough" to mean "oven," stating that the "ordinary, simple English words [in the claim,] whose meaning is clear and unquestionable" trumped the nonsensical result. Id. at 1373. The words in the claim "mean exactly what they say. The dough is to be heated to the specified temperature." Id. The same result is required here. The ordinary, simple English words in claim 1 of the '142 patent make clear that the expandable surface defines the apparatus volume; it is plainly not the case, despite Plaintiffs' attempts to contort the ordinary meaning of the language, that the apparatus volume and surface are the same thing. They are different. The ordinary, simple English words of claim 1 also make clear that the apparatus volume "fill[s]" the "void created by the surgical extraction of diseased tissue." Thus, the limitation that the radiation source be "located so as to be spaced apart from the apparatus volume" means that the radiation source is located outside of the expandable outer surface. In this way ­ and only in this way ­ do the words of the claim "mean exactly what they say." Chef Am., 358 F.3d at 1373. Had Plaintiffs here wanted claim 1 to read "a radiation source disposed completely within and spaced apart from the expandable outer surface" (essentially their current construction of the "spaced apart" limitation), they clearly could have drafted or amended the claim to so read. In fact, Plaintiffs said exactly that in claim 9 of the '142 patent. See Ex. 1 ('142 patent), claim 9 ("an expandable outer surface . . . defining a three-dimensional apparatus volume configured to fill an interstitial void created by the surgical extraction of diseased tissue and define an inner boundary of the target tissue being treated; a radiation source disposed completely within and spaced apart from the expandable outer surface . . . ."). However, they chose not to in claim 1, and, as in Chef America, must be held to the consequences. The same result was reached in Process Control. As here, the claim in Process Control explicitly defined a term that, given the term's definition, meant the claim recited an impossibile, nonsensical limitation. Process Control, 190 F.3d at 1357. The Federal Circuit rejected the patentee's request to construe the term in accordance with the specification or in accordance with
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what was intended to have been claimed. Id. at 1356-57. Instead, the Federal Circuit held that the claim language trumped any other evidence allegedly supporting a contrary construction: The district court's attempt to use the written description to circumvent the plain language of the claim and the clear definition of the disputed claim language found therein was inappropriate. . . . [W]e do not permit courts to redraft claims. . . . Where, as here, the claim is susceptible to only one reasonable construction, the canons of claim construction cited by [the patentee] are inapposite, and we must construe the claims based on the patentee's version of the claim as he himself drafted it. Id. at 1357 (emphasis added). As a result, the court in Process Control invalidated the claim as

8 inoperable, holding that it recited an impossibility. Id. at 1359 ("[W]hen an impossible 9 limitation, such as a nonsensical method of operation, is clearly embodied within the claim, the 10 claimed invention must be held invalid."). 11 The Northern District of California recently cited Process Control in a case raising the 12 exact question at issue here. In Applera Corp. v. Illumina, Inc., No. C-07-02845, 2008 WL 13 501391 (N.D. Cal. Feb. 21, 2008), the court recognized that the specification was inconsistent 14 with the claims, but nonetheless held that: 15 16 17 18 Id. at *5. Similarly, Plaintiffs here should not be allowed to rewrite their claims and escape 19 invalidity. 20 The Court in its PI Order suggested claim 1 could be read to require that the apparatus 21 volume defines the inner boundary of the target tissue to be treated, and that this created an 22 ambiguity in the claim that might distinguish Process Control. PI Order at 15-16. In particular, 23 the Court reasoned that it is undisputed that the outer surface of the balloon touches the target 24 tissue; therefore the claim in referring to the "apparatus volume" defining the inner boundary of 25 the tissue could be equating the surface and the volume. Id. at 15. Respectfully, the Court's 26 conclusions do not follow from its premise. 27 In context, there is no inconsistency between the apparatus volume defining an inner 28
SENORX, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY

After much study of the specification, the undersigned judge is of the view that the inventor, patent counsel, and the examiner all made a drafting error. While it is tempting to just fix it up in the claim construction process, that temptation would be dangerous course, for it should be up to the PTO in the first instance to amend claims.

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boundary of the target tissue and the apparatus volume being a distinct and separate structure from the outer surface (and defined by that surface). The first element of claim 1 recites, on the Court's reading, that the apparatus volume (1) fills the void created by surgical extraction of diseased tissue and (2) defines an inner boundary of the target tissue being treated. When devices of this type are used, however, these two functions are interrelated and are essentially two sides of the same coin. When the apparatus volume fills the void left by surgical removal of diseased tissue, the device's balloon is completely inflated and in contact with the inner boundary of the target tissue. As a result, for all practical purposes, the inner boundary of the target tissue is the same as the outer boundary of the void left after tissue has been removed ­ both are the edge of the cavity that has been filled by the volume. Accordingly, by filling the void left by the surgical extraction of tissue, the apparatus volume also is necessarily defining an inner boundary of the target tissue to be treated ­ where the "filling" of the void stops, the "defining" of the boundary necessarily begins. Thus, there is no inconsistency between the plain meaning of "apparatus volume" and the apparatus volume defining the inner boundary of the target tissue. Moreover, as discussed in SenoRx's Markman brief, another plausible reading of the claim is that the expandable outer surface, and not the apparatus volume, defines the inner boundary of the target tissue. But either way, this possible ambiguity does not affect the plain definition of apparatus volume in the claim, and has nothing to do with the issue at hand. Whether the boundary of tissue to be treated is defined by the volume or by the surface, the claim plainly states that the surface defines the volume, and that they are not the same thing. For these reasons, it is respectfully submitted that Process Control governs the result here, and Plaintiffs should be precluded from redrafting their claim through the claim construction process to avoid inoperability and invalidity. CONCLUSION Since the radiation source of claim 1 cannot simultaneously be "within" the outer surface and "spaced apart" from the volume defined by that surface, claim 1 is inoperable and invalid. As claim 8 depends from claim 1, it too should be declared invalid for the same reasons.
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1 2 3 4 5 Dated: May 21, 2008

Respectfully Submitted,

WILSON SONSINI GOODRICH & ROSATI Professional Corporation

By: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SENORX, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY

/s/ F.T. Alexandra Mahaney F.T. Alexandra Mahaney [email protected]

Attorneys for Defendant and Counterclaimant SENORX, INC.

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F.T. Alexandra Mahaney, State Bar No. 125984 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 12235 El Camino Real, Suite 200 San Diego, CA 92130 Telephone: (858) 350-2300 Facsimile: (858) 350-2399 Email: [email protected] Bruce R. Genderson (admitted pro hac vice) Aaron P. Maurer (admitted pro hac vice) Rachel Shanahan Rodman (admitted pro hac vice) Adam D. Harber (admitted pro hac vice) WILLIAMS & CONNOLLY LLP 725 Twelfth St. NW Washington, DC 20005 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 Attorneys for Defendant and Counterclaimant SENORX, INC. IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION HOLOGIC, INC., CYTYC CORP., and HOLOGIC L.P., Plaintiffs, v. SENORX, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 08-CV-0133 RMW DECLARATION OF ADAM D. HARBER IN SUPPORT OF DEFENDANT SENORX, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY ('142 PATENT, CLAIMS 1 AND 8)

SENORX, INC., Counterclaimant, v. HOLOGIC, INC., CYTYC CORP., and HOLOGIC L.P., Counterdefendants.

Date: June 25, 2008 Time: 2:00 p.m. Courtroom: 6, 4th Floor Judge: Hon. Ronald M. Whyte

DECLARATION OF ADAM D. HARBER IN SUPPORT
OF DEFENDANT SENORX, INC.'S MOTION FOR

CASE NO. C08-0133 RMW (RS)

PARTIAL SUMMARY JUDGMENT OF INVALIDITY

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F.T. Alexandra Mahaney, State Bar No. 125984 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 12235 El Camino Real, Suite 200 San Diego, CA 92130 Telephone: (858) 350-2300 Facsimile: (858) 350-2399 Email: [email protected] Bruce R. Genderson (admitted pro hac vice) Aaron P. Maurer (admitted pro hac vice) Rachel Shanahan Rodman (admitted pro hac vice) Adam D. Harber (admitted pro hac vice) WILLIAMS & CONNOLLY LLP 725 Twelfth St. NW Washington, DC 20005 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 Attorneys for Defendant and Counterclaimant SENORX, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION HOLOGIC, INC., CYTYC CORP., and HOLOGIC L.P., Plaintiffs, v. SENORX, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 08-CV-0133 RMW [PROPOSED] ORDER GRANTING DEFENDANT SENORX, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY ('142 PATENT, CLAIMS 1 AND 8)

SENORX, INC., Counterclaimant, v. HOLOGIC, INC., CYTYC CORP., and HOLOGIC L.P., Counterdefendants.
[PROPOSED] ORDER REGARDING SENORX, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY ('142 PATENT, CLAIMS 1 & 8)

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The Court having considered Defendant SenoRx, Inc.'s Motion for Partial Summary Judgment of Invalidity, the Memorandum in Support thereof, and the attached exhibits, and any Opposition thereto, any reply, and for good cause shown; IT IS HEREBY ORDERED that SenoRx's Motion for Partial Summary Judgment of Invalidity is GRANTED; and FURTHER ORDERED that Claims 1 and 8 of U.S. Patent No. 6,482,142 are invalid.

SO ORDERED.

Dated: _____________________, 2008

By: _________________________________ Hon. Ronald M. Whyte United States District Judge

[PROPOSED] ORDER GRANTING SENORX, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY ('142 PATENT, CLAIMS 1 & 8)

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