Eastern District of Texas issues a Claim Construction Memorandum and Order for disputed claim terms in patent at center of Viveve, Inc. v. ThermiGen, LLC, et al.

On October 24, 2016, Plaintiff Viveve, Inc. filed a patent infringement suit against Defendants ThermiGen, LLC, ThermiAesthetics, LLC, and Dr. Red Alinsod. Plaintiff alleged infringement of their patent, No. 8, 961, 511, entitled “Vaginal Remodeling Device and Methods.” Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and 35 U.S.C.§ 101, arguing that Plaintiff’s patent was directed to a natural law or phenomenon. The Court denied Defendants’ motion, applying the Mayo two-step analysis and establishing that the patent was not directed to a natural law or phenomenon, and recited an inventive concept. In October 2017, the Court held a hearing to determine the proper construction of the 6 disputed claim terms in the patent, and thereafter on November 13, 2017, issued a Claim Construction Memorandum and Order in light of arguments presented by both parties, intrinsic evidence, and subsidiary fact findings based on extrinsic evidence. The case is 2:16-cv-1189 and in the United States District Court for the Eastern District of Texas.

By: Laya Varanasi