Federal Circuit Affirms The United States District Court For The Western District Of Texas’s Claim Construction Order And Entry Of Final Judgment Of Non-Infringement
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  • Federal Circuit Affirms The United States District Court For The Western District Of Texas’s Claim Construction Order And Entry Of Final Judgment Of Non-Infringement
     
    05/09/2023
    Canopy Growth Corp. (“Canopy”) filed a patent infringement lawsuit against GW Pharma Ltd. and GW Research Ltd. (collectively, “GW”) in the United States District Court for the Western District of Texas.  Judge Alan Albright issued an order construing the sole disputed claim limitation:  “CO2 in liquefied form under subcritical pressure and temperature conditions.”  Based on the issued claim construction order, the parties stipulated to non-infringement, and the court entered final judgment in favor of GW as to infringement and dismissed GW’s remaining affirmative defenses and counterclaims without prejudice.  Canopy appealed the court’s claim construction.  On April 24, 2023, the United States Court of Appeals for the Federal Circuit (“CAFC”) issued an opinion affirming Judge Albright’s claim construction and the entry of final judgment of non-infringement.

    The asserted patent claims processes for producing an extract containing tetrahydrocannabinol (THC) and/or cannabidiol (CBD) from cannabis using liquid carbon dioxide (i.e., CO2).  CO2 can exist in the solid, liquid, and gas phases.  But when temperature and pressure are high enough, CO2 can transition from the liquid or gas phase into a supercritical fluid state.  The lowest combination of temperature and pressure at which this transition can occur is the “critical point.”  It is conventionally understood that, only if both temperature and pressure are above the critical point, will CO2 enter the “supercritical” fluid state.  Also, conventionally, CO2 can be described as “subcritical” when either or both of its temperature or pressure is below the critical point.

    Despite the above conventional understanding, the court construed the phrase, “CO2 in liquefied form under subcritical pressure and temperature conditions,” to mean that both the pressure and temperature needs to be subcritical.  The court explained its reasoning.  First, the court relied on the claim’s use of “and” instead of “or,” which the court found to indicate that the claim required both pressure and temperature to be subcritical.  Second, the court found that the use of the plural in “conditions” does not alter the construction.  Third, the court found that the specification and prosecution history disclosed three alternative conditions: supercritical pressure and temperature, subcritical temperature and supercritical pressure, and subcritical pressure and temperature—the last of which the claims covered.  Last, the court found extrinsic evidence not sufficient to outweigh the intrinsic evidence.

    On appeal, Canopy argued that the patent discloses two embodiments, one in which CO2 has both supercritical pressure and temperature and one in which either the temperature or pressure of CO2 (or both) are subcritical (i.e., Canopy conflated the second and third alternative conditions discussed above).  Canopy asserted that its proposed construction captures the full scope of the second embodiment.  Under Canopy’s construction, the phrase “pressure and temperature” is read as a unit modifying “conditions” in such a way that it means a combination of “pressure and temperature conditions” that is subcritical.  Canopy insisted that no evidence of record suggests that a person of ordinary skill in the art would have reason to distinguish between liquid CO2 with both subcritical pressure and temperature and liquid CO2 with subcritical temperature and supercritical pressure, as both are subcritical and functionally indistinct.

    The CAFC rejected Canopy’s arguments and held that the ordinary meaning of “subcritical pressure and temperature conditions” favors the construction advanced by GW and accepted by the district court.  The CAFC reasoned that the term “subcritical” operates most plainly as a prepositive modifier that modifies either (i) both “pressure” and “temperature” or (ii) both “pressure conditions” and “temperature conditions.”  Further, the CAFC held that the prosecution history foreclosed Canopy’s construction and two-embodiment reading.  During prosecution, Canopy sought claims directed to three alternatives, not two:  (1) supercritical fluid CO2, (2) CO2 with subcritical temperature and supercritical pressure, and (3) CO2 with subcritical pressure and temperature conditions.  Canopy sequentially deleted the first and second sets of conditions from the initially sought claims and ultimately claimed only the third set of conditions.  Accordingly, the CAFC affirmed Judge Albright’s construction and entry of final judgment of non-infringement.
    CATEGORY: Claim Construction

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