Tissue Graft Patent Terms Construed

February 1, 2017 – A Markman Order construing several terms in a placental tissue graft patent was recently issued by Judge Hopkins in the Northern District of Alabama.  The primary disagreement between the parties concerned the construction of the term “directly laminated to each other” with reference to grafts in which different tissue layers are attached.  In particular, the parties disagreed about the amount of tissue that may remain between the layers, which are removed and washed before attachment to form the claimed grafts.  The court found that the plaintiff’s construction of the term to require removal of “merely ‘substantially all’” of the intervening tissue was supported by the claim language, the specification, and the prosecution history.  The court rejected defendants’ construction of the term to require “nothing in between” the directly laminated layers.

The asserted patents are U.S. Patent No. 8,709,949, entitled “Placental Tissue Grafts.”  The case is captioned MiMedx Group, Inc. v. Nutech Medical, Inc., Docket No. 2-15-cv-0369, in the Northern District of Alabama, Southern Division.

By: Sean C. McDonagh