Patent Baristas

The Coalition for Patent Fairness held a conference call for the Media yesterday to announce that Senate leaders has made public statements suggesting that the Patent Reform Act (S.1145) could come up for the floor vote in mid-April.  General Counsels from companies that make up the Coalition for Patent Fairness discussed the current state of the bill, what they expect will be accomplished in the weeks ahead and answered some questions.

The Coalition for Patent Fairness is made up of high-tech companies pushing for patent reform. While the last comprehensive patent law reform by Congress was last major revision of the patent laws was the Patent Act of 1952, P.L. 82-593, there is intense lobbying urging that the U.S. patent system is broken and needs to be fixed.

Although no one has really studied whether or not the system is actually in need of change, the call for altering the patent system comes mainly from the high-tech industry, which feels under fire from too many patent infringement lawsuits. Many believe corporations are trying to change the laws to fit their business model instead of trying to fit their business practices to conform to existing U.S. patent laws.

Taken together, the Patent Reform Act, the Supreme Court rulings and the proposed Patent Office rule changes tend to favor the high-tech industry over the biotech and pharmaceutical industries. The bill favors high tech over pharma and biotech particularly in changing the apportionment of damages clause, which would reduce damage awards substantially.

The effect can be disparate since the high tech industry is built on many patents covering incremental changes and improvements while the pharmaceutical industry typically would have one or two patents covering the compound at issue. High tech companies are out to quash so-called nuisance suits while pharmaceutical companies can live and die on a single patent.

(See: Duality: Light and Dark Forces Line Up For and Against Patent Reform)

Mark Chandler, General Counsel of Cisco, Mike Holston, General Counsel of HP and Time Warner chief patent counsel Chuck Fish answered questions on the perennial reform bill. They presented the bill as having consensus on most items with four remaining issues of serious contention.

These issues are:

Applicant Quality Submissions – what Fish said was referred to by the three letters AQS (but often referred to by opponents with four-letter words). In this provision, the USPTO wants to transfer responsibility for patent searching from patent examiners to patent applicants. The Intellectual Property Owners (IPO) has been campaigning against this hair-brained idea.

Venue – the bill would change the rules on venue, i.e., where a patent holder can sue an infringer. The Coalition believes that neither plaintiffs nor defendants should have to go to an inconvenient forum. Of course, the definition of inconvenient is up for debate.  More at the Chicago IP Litigation Blog.

Reasonable Royalty Damages – Currently, courts generally consider the value of the entire product when any part of it infringes a patent. The proposed changes would allow judges to base damages only on the “economic value properly attributable to patent’s specific contributions over the prior art.” Opponents of the legislation say it would make it easier for large companies to infringe the patents of small companies or individual inventors. More at Patently-O.

Equitable Defense – the Coalition urges that there needs to be real consequences for misleading the PTO and there needs to be efforts to avoid making changes with unintended consequences. Currently, the legislation would effectively remove inequitable conduct as a defense in infringement cases by first requiring a finding of prior art that invalidates the patent claim. If the claim is already invalid on the basis of the prior art, the issue of inequitable conduct becomes moot. More at Patent Docs.

When pressed for making any substantive comments, the Coalition members shrugged off questions by saying they were not prepared to make specific statements or suggestions especially related to what they would compromise on or not. However, the Coalition members made it clear that the one item on the list that was a minimum for their approval was the limitation on damages. They said there needs to be meaningful changes and that the only way the bill was going forward was with this critical issue intact. More from the Patent Law Center.

It’s not clear why the announcement now but Dan Sweet, a spokesman for the Coalition for Patent Fairness, said he expects the Senate to take action soon.

Ronald Riley, president of the Professional Inventors Alliance, thinks there is enough opposition to prevent passage of the bill.  Many unions, such as the AFL-CIO, the International Federation of Professional and Technical Engineers, and the United Steelworkers are against the legislation. Unions are concerned that the mandatory publication clause will make it easier for others to pirate technology leading to a loss of jobs.  While the Coalition has said their concerns were addressed, universities and research institutes also appear to have problems with the bill in its current form.

Biotechnology Industry Organization (BIO) President and CEO Jim Greenwood immediately released a statement rejecting claims that patent reform legislation is close to ready for consideration by the full Senate:

BIO has been working constructively with interested Senators and stakeholders, and we are unaware of any “deal” on patent reform, or that a consensus deal is close to being finalized. A wide range of industries, labor unions and universities continue to have serious concerns about key provisions of the Patent Reform Act, S. 1145, including the apportionment of damages, post-grant review and real inequitable conduct reform.

Apparently, the USPTO doesn’t even support the Patent Reform Bill. 

more at twiigs.com…

 More here:
IPO Urges Action Against Patent Reform Bill Provision
Bush Administration Calls For “Tech Neutral” Patent Reform
Senate Committee Gives Thumbs Up To Patent Reform Bill
Corn Growers Like Patent Reform; Venture Capitalists Not So Much
Patent Reform Act of 2007: Responding to Legitimate Needs or Special Interests?

Dr. Triantafyllos Tafas’ lawsuit, arguing that the proposed U.S. Patent Office continuation rules are void for exceeding its authority, won a permanent injunction prohibiting the USPTO from putting the new rules changes into effect (Final Rules; 72 Federal Register 161 at 46716).  Triantyfyllos Tafas v. John Dudas and the United States Patent and Trademark Office.

Dr. Tafas, an inventor on more than seventeen patents pending and on eight U.S. issued patents as well as a co-founder at Ikonisys, complained that the USPTO exceeded its Congressionally-delegated rulemaking authority and that the new rule changes specifically violate Section 120, 132, and 365 of the Patent Act.

He was joined by SmithKline Beecham Corporation (d/b/a GlaxoSmithKline). Together, GSK and Tafas claim that the Final Rules, which change the patent system by modifying several long-established rules governing patent examination by the USPTO, are unlawful agency action under Section 706(2) of the Administrative Procedure Act (APA)

The proposed rules would have fundamentally changed the way patents are prosecuted. Once the application is filed, a patent examiner determines whether the claimed invention meets certain statutory requirements such as novelty, nonobviousness, and definiteness, among others. If an application fails to meet these demands, the examiner will issue an Office Action containing the grounds for rejection.

Once a patent application is filed and (finally) reviewed by a patent examiner, the examiner issues an Office Action stating reasons for reflecting the claims. The applicant may then amend the claims, argue against the rejection, or present evidence showing why the invention is patentable. The patent examiner must then respond by either allowing some or all of the claims or by issuing another rejection.

At issue is that this back-and-forth exchange between an applicant and an examiner does not go on forever. The patent rules state that the second Office Action may be made final. While that implies that there can be many added rounds of review and response, the reality is that the Patent Office almost always issues a second action as final. Why? Because it can. If the action is made final, it boxes the applicant in and limits their ability to respond.

After receiving a final rejection, an applicant may: (1) appeal to the Board of Patent Appeals and Interferences and from there to the United States Court of Appeals for the Federal Circuit; (2) file a request for continued examination (RCE) of the application; or (3) file a continuation or continuation-in-part application. All this costs the applicant additional money in order to proceed.

Before, an applicant could file an unlimited number of continuation or continuation-in-part applications, RCEs, and claims. The Proposed Rules would have limited the number of continuing applications, RCEs, and claims that an applicant could make as a matter of right. The USPTO justified the proposed changes on the ground that the growing number of continuation applications and increasing number and complexity of claims in applications was causing them to have to work too much.

The Final Rules would have permitted an applicant as a matter of right to file two continuation or continuation-in-part applications, plus a single RCE, after an initial application. If the applicant wanted to continue, a third continuation or continuation-in-part application or a second RCE can be filed with a petition and showing that explains why the amendment, argument, or evidence could not have been presented previously.

Fortunately, the court found that the rules went beyond what the law permits:

GSK, Tafas, and the USPTO make numerous arguments for summary judgment in their favor. After thorough examination of the parties’ briefs, the arguments of roughly two dozen amici curiae, and the extensive administrative record, the Court finds that the Final Rules are substantive in nature and exceed the scope of the USPTO’s rulemaking authority under 35 U.S.C. § 2(b)(2). Consequently, the Court will grant summary judgment to GSK and Tafas and void the Final Rules as otherwise not in accordance with law and in excess of statutory jurisdiction [and] authority. 5 U.S.C. § 706(2). In addition, because the Court believes that one who judges least judges best, it will not reach the other issues raised by the parties, resting instead on the determination of a single dispositive issue.

Section 2(b)(2) of Title 35 empowers the USPTO to establish regulations, not inconsistent with law, to govern the conduct of proceedings in the Office. Under Federal Circuit precedent, however, Section 2(b)(2) does not vest the USPTO with any general substantive rulemaking power.

The USPTO argued that it doesn’t matter if a rule is substantive or procedural and said that the question before the Court is simply whether the Final Rules fall within the expressly delegated rulemaking authority of Section 2(b)(2). According to the USPTO, the 2+1 Rule and the 5/25 Rule fall within the reach of Section 2(b)(2) because they govern the conduct of proceedings in the Office by facilitat[ing] and expedit[ing] the application process.

The court pooh-poohed this:

Despite this attempt to abolish the substantive- procedural distinction, however, the balance of the case law in the Federal Circuit and the Supreme Court indicates that the distinction exists, and that it is pertinent to this dispute. Both Merck and Animal Legal Defense Fund acknowledge the divide, and the law in those cases is clear: Section 2(b)(2)’s authority is limited to rules governing the conduct of proceedings before the Office, the USPTO does not have the authority to issue substantive rules, and it does not have the authority to make substantive declarations interpreting the Patent Act. See Merck, 80 F.3d at 1549-50; Animal Legal Def. Fund, 952 F.2d at 930. Contrary to the USTPO’s contention, the holding in Merck is not mere dicta. Instead, the Court’s delineation of the USPTO’s rulemaking authority under Section 2(b)(2) formed the basis for its conclusion that the Final Determination at issue in that case was not entitled to Chevron deference. See Merck, 80 F.3d at 1549-50. Furthermore, while the USPTO is correct that the ultimate issue in Animal Legal Defense Fund was whether a USPTO policy notice should have been subject to notice and comment rulemaking, in deciding that question the Court nevertheless made a strong statement about the procedural, rather than substantive, nature of Section 2(b)(2)’s statutory predecessor. See 932 F.2d at 930-31. Accordingly, the Court finds that Section 2(b)(2) does not permit the USPTO to promulgate substantive rules, and any rules that may be deemed substantive will be declared null and void.

The USPTO tried arguing that even if the substantive/procedural distinction matters, the USPTO has the authority to promulgate the Final Rules because they are clearly procedural. According to the USPTO, the Final Rules are procedural in nature because, rather than altering the substantive requirements for novelty, nonobviousness, or definiteness, they instead aim to curb repetitive filings by requiring applicants to justify those excess filings and to assist the agency in examining burdensome applications.

This still didn’t work:

Despite the USPTO’s arguments, the Court finds that the Final Rules are neither procedural rules nor rules relating to application processing that have substantive collateral consequences, but substantive rules that change existing law and alter the rights of applicants such as GSK and Tafas under the Patent Act. The 2+1 Rule and the 5/25 Rule, which limit continuing applications, RCEs, and claims, and the ESD requirement, which shifts the examination burden onto applicants, constitute a drastic departure from the terms of the Patent Act as they are presently understood. By so departing, the Final Rules effect changes in GSK’s and Tafas’s existing rights and obligations. The Court will now explain why the provisions of the Patent Act compel this conclusion.

As the Court described in Part I of this Opinion, under the existing patent system an applicant may file an unlimited number of continuation or continuation-in-part applications, RCEs, and claims. As to continuation and continuation-in-part applications, Section 120 provides that such applications shall have the benefit of the priority date of the initial application. 35 U.S.C. § 120. The CCPA has interpreted this language to mean that there is no statutory basis for fixing an arbitrary limit to the number of [continuing] applications that may be filed and that retain the benefit of the priority date.

I wouldn’t throw a party just yet, though.  Like the villain in a bad, B-movie horror flick, the Patent Office will keep coming back with more proposed rules to reduce their workload.  For more creatures from the depths, see the much-loathed Applicant Quality Submissions (AQS). 

In its press release, BIO has already asked for a more “fair and balanced” route to patent reform.

Read the entire opinion here (Tafas SJ Opinion)

Read a copy of the complaint here (link)

More here:

Patent Rule Injunction, Court To Sleep On It
Examination Support Document (ESD) Could Add $26,000 to Patent Costs
Is the Public Interest Really Upheld by the New USPTO Rules?
Court Blocks New USPTO Rules on Continuations and Claims — For Now
Patent Wars Episode II: GSK Strikes Back

Intellectual Property Owners (IPO) has made a call to arms agains the patent reform legislation in the Senate (S.1145), which may be considered for a vote within the next few weeks. IPO is all-out against the dreaded Applicant Quality Submissions (AQS).

Section 11 on AQS would require nearly all patent applicants to (1) search the prior art and (2) submit a search report and analysis to the USPTO with their applications.

As it appears in S.1145, if enacted, AQS would:

1. impose substantial new costs on applicants without meaningful benefits to the USPTO;
2. create additional opportunities for inequitable conduct claims to be raised at trial;
3. open up opportunities for litigation claims related to the adequacy of the mandatory search; and
4. subject applicants to different standards by exempting micro-entities from the requirement.

The provision adds additional burdens on applicants, increases the cost and complexity of prosecution and litigation and fails to provide meaningful assistance to help the PTO do a better job of examining patent applications. It will deter filing of applications and weaken incentives to invent.

You may find additional information along with instructions on how to contact your Senators on the IPO website at: www.ipo.org/AQSCampaign.  The IPO Staff is available to answer any question you may have on this or other parts of the bill. Call (202) 466-2396 or email Dana Colarulli at: dana@ipo.org.

Make your voice heard.

We’ve been quite busy these days and so I wanted to pass along that my firm is currently looking to hire an IP attorney.

The Position:

Patent Associate with at least 2+ years of experience in patent prosecution, counseling and licensing.  The candidate should have an advanced degree in a chemical field (Ph.D. preferred), with a concentration in analytical, biochemistry, organic, medicinal or pharmaceutical chemistry, or a closely related field. 

The Place:

The Cincinnati, Ohio office of Frost Brown Todd LLC, one of the 150 largest law firms in the United States, with a top rated Midwest intellectual property practice. Not to mention the opportunity to work closely with the Patent Baristas.

The Rest:

To learn more about us and the communities we serve, visit our home page at www.frostbrowntodd.com.  Send resume, law school and undergraduate transcripts and writing samples to Karen Laymance, Frost Brown Todd LLC, 2200 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202 or by email to klaymance@fbtlaw.com. Frost Brown Todd LLC is an equal opportunity employer.

The Kentucky BioAlliance has established a fund to provide stipends for Kentucky-based biotech companies to attend the annual Biotechnology Industry Organization BIO2008 conference. Companies that are selected will be awarded a stipend to cover up to $800 in expenses associated with attending the annual BIO International Conference. To apply, fill out an application here.

Biotech companies say they are ready for legislation covering biogenerics. BIO is making the legislation a priority in 2008 and is working to negotiate guidelines favorable to its members.  The U.S. currently spends $40 billion per year on biotech drugs and the leading presidential candidates — Sens. Barack Obama, Hillary Rodham Clinton and John McCain — have all advocated generic drugs as a health care cost-cutter. The Bush administration said it would like to see the FDA gain the power to approve biogenerics this year.

Gibson Guitar said that the “Guitar Hero” video games infringe one of Gibson’s patents and Activision has asked a U.S. court to declare the claim invalid.  Gibson’s U.S. Patent No 5,990,405 claims a method for simulating a live performance using a musical instrument, a 3D headset with stereo speakers, and a pre-recorded concert. If you go by the old patent law maxim that claims thicker than about “three fingers” are probably too narrow to enforce, then Gibson’s seven part method claim will have a tough way to go.  Note: The first element requires “(a) a musical instrument, the musical instrument generating an instrument audio signal at an instrument audio output, the instrument audio signal varying in response to operation of the instrument by the user of the system.”

Pfizer got a Canadian appeals court ruling blocking regulatory approval of Ranbaxy’s generic version of the cholesterol pill Lipitor. Canada’s Federal Court of Appeal reversed a lower-court ruling that Ranbaxy could sell a competing generic before Pfizer’s patent expires in 2010. Pfizer’s Lipitor sales were $12.7 billion last year.

Filed under yet another thing to be worried about, a report shows that medical devices can be hacked. About 100,000 Americans have a new kind of defibrillator implanted near their heart that’s vulnerable to hacking and even reprogramming. The devices rely on wireless transmissions that weren’t encrypted. Regulators and defibrillator makers say there’s just a slim chance of hackers targeting the devices but expect to see more of this as devices go wireless.

A Superior Court judge on Thursday ordered Starbucks Corp. to pay its California baristas $106 million in back tips and interest that the company had taken from its baristas and gave to shift supervisors.  San Diego Superior Court Judge Patricia Cowett also issued an injunction saying state law prohibits managers and supervisors from sharing in employee gratuities. Starbucks spokeswoman Valerie O’Neil said the decision “represents an extreme example of an abuse of the class-action procedures in California’s courts.” But barista attorney Laura Ho said “Starbucks illegally took a huge amount of money from the tip pool to pay shift supervisors, rather than paying them out of its own pocket.”  If only the Patent Baristas could get tips.

Finally, the pharmaceutical business (reporting) has become a soap opera.  Pharmalot stimulated some comments after posting about an Rx video soap opera. We haven’t viewed the clips so take it as it is.

Eighteen states and the District of Columbia have filed suit against Abbott Laboratories and Solvay’s Fournier Industrie et Santé and Laboratories Fournier for allegedly entering into a scheme to block the generic version of the cholesterol lowering drug TriCor®  (fenofibrate), indicated for the treatment of hypercholesterolemia and hypertriglyceridemia.

According to the AGs in the states, the companies made trivial changes to the formulations of TriCor, and marketed those while withdrawing the original drug from the market. The companies deleted references to the original forms of the drug from national drug databases, according to prosecutors, making it more difficult for a generic version of TriCor to obtain generic status

The states filed their lawsuit in federal court in Wilmington, Delaware, accusing Abbott and of undermining efforts to bring generic drugs to market by patenting new formulations of TriCor with only minor changes to the drug.

TriCor, which costs more than $3 a pill, generated sales of $1.2 billion for Abbott in 2007, but the company, according to the lawsuit, has tried to maintain a monopoly on the market by obtaining term-extending patents. Abbott denies the allegations saying it has not prevented other fenofibrate drugs from being marketed.

The prosecutors say Fournier obtained patents covering the variations of TriCor and then filed patent infringement lawsuits against generic companies that tried to compete. The litigation meant that the Food and Drug Administration could not approve generic versions of TriCor.

In a long-running battle with Teva Pharmaceutical, Abbott has tried to stay one step ahead of the generic entry. Originally, Teva filed an ANDA for ANDA for a TriCor capsule formulation and made a Paragraph IV certification that U.S. Pat. No. 4,895,726 was invalid so not infringed. A bbott sued and initiated a 30-month stay of FDA approval.

While the capsule battle was continuing, Abbott filed a new NDA for 54 mg and 160 mg TriCor in a tablet formulation arguing that the tablet was bioequivalent to the capsule. After this was approved, Abbott stop selling the capsules and bought back all the capsules from the market.

The Abbott, in a move that was probably too smart for their own good, changed the code for TriCor capsules in the National Drug Data File (NDDF) to “obsolete.” The NDDF is a private database that provides information about FDA-approved drugs. Changing the code to obsolete then removed the TriCor capsule drug formulation from the NDDF, which prevented pharmacies from filling TriCor prescriptions with a generic capsule formulation.

Needless to say, Teva took it kind of hard and added antitrust counterclaims to its suit against Abbott. Abbott is no longer marketing the 54 mg and 160 mg strength tablets because it has now changed its Tricor product to 48 mg and 145 mg strength tablets. Abbott even filed a new NDA for 48 mg and 145 mg TriCor tablets looking to change the label to state that the new tablets do not need to be taken with food (the dissolvable version).

Teva claims that Abbott’s actions have frustrated generic competition in Fenofibrate products through a combination of two market conversions and the gaming of the Hatch-Waxman Act, denying consumers access to a generic alternative to Abbott’s products.

The dissolvable version of TriCor retains patent protection until 2018.

In the current suit by various AGs, the states involved are Arizona, Arkansas, California, Connecticut, the District of Columbia, Florida, Iowa, Kansas, Maine, Maryland, Minnesota, Missouri, Nevada, New York, Oregon, Pennsylvania, South Carolina, Washington, and West Virginia.

No word yet on when Abbott’s new magic orange-colored TriCor comes out.

See a timeline at the Orange Book blog.

The Office of Technology Transfer and Commercialization at the University of Cincinnati is looking for a Senior Licensing Associate to manage an academic technology portfolio in a multidisciplinary team environment. 

The position requires an advanced degree in (MS or PhD) engineering, chemistry, life sciences or related fields along with excellent written and verbal communication skills.  A sense of humor doesn’t hurt.  Experience with technology licensing and familiarity with patent law preferred.

This is my old office so I can recommend it from personal experience.

If interested, send a resume to:

Anne H. Chasser
Associate Vice President
Intellectual Property Office
University of Cincinnati
PO Box 670829
3130 Highland Ave, Third Floor
Cincinnati, OH  45219-2374

The University of California and Abbott appealed after the district court turned down their attempt to stop Dako from making and selling its HER2 FISH pharmDXTM kit, allegedly infringing U.S. Patents 5,447,841 and 6,596,479.   The Regents of the University Of California, Abbott Labs v. Dakocytomation California (06-1334, -1452; 07-1202)

The inventions claimed in the patents are improved methods for identifying and classifying chromosomes to detect chromosomal abnormalities associated with genetic disorders, degenerative diseases, and exposure to agents known to cause degenerative diseases, such as cancer.

There are three general types of chromosomal abnormalities: extra or missing individual chromosomes, extra or missing portions of a chromosome, or chromosomal rearrangements. Procedures in the prior art required that chromosomes be in the metaphase phase of the cell cycle because it was not possible to visualize nonmetaphase, or interphase chromosomes due to their dispersed condition in the cell nucleus, which is extremely difficult and time consuming, and almost impossible for tumor cells.

Other prior art techniques used probes comprised of DNA and RNA fragments for gene mapping and were limited by the nonspecificity of that technique — due to repetitive nucleotide sequences that were present throughout the chromosomes. Labeled probes would not only hybridize with the target chromosomal DNA, but with repetitive sequences as well, thereby producing false-positive results.

Abbott’s new technique allowed detection of chromosomal abnormalities in both metaphase and interphase cells using standard clinical and laboratory equipment.

In denying a preliminary injunction, the court concluded that appellants failed to show a likelihood of success on the merits of their infringement claim under the ’479 patent based on its claim construction of two claim limitations, of “morphologically identifiable chromosome or cell nucleus” and “heterogeneous mixture of labeled unique sequence nucleic acid fragments.” The court also based its conclusion on appellants’ failure to show a likelihood of success that the accused product met the “blocking nucleic acid” limitation of the ’841 patent under the doctrine of equivalents.

While an appeal was pending, the district court amended its basis for rejecting appellants’ proposed construction of the term “heterogeneous mixture of labeled unique sequence nucleic acid fragments.” The court amended “its previous order to the extent it improperly cite[d] 35 U.S.C. § 102 as the basis for questioning the validity of the claims of the ’479 patent” in light of the ’841 patent, and instead stated that the ’479 patent would likely be rendered invalid under the doctrine of nonstatutory (obviousness) double patenting.

After the district court held a Markman hearing, the court granted summary judgment of noninfringement of the ’479 patent as to all of the accused products based on its construction of the “heterogeneous mixture” limitation. The court further granted summary judgment of noninfringement on the ’841 patent, concluding that Abbott was barred from asserting infringement of the “blocking nucleic acid” limitation under the doctrine of equivalents. The court also denied summary judgment on the ’841 patent as to the remaining twenty accused products. The court did not address whether Dako’s products met the “morphologically identifiable” limitation — a claim limitation that was at issue in the preliminary injunction motion.

Abbott argued that the district court erred in its construction of the claim limitation “heterogeneous mixture of labeled unique sequence nucleic acid fragments” to mean “heterogeneous mixture of labeled nucleic acid fragments that includes only unique sequence fragments,” whereas Dako’s kits contain repetitive sequences. Abbott said that the court erred by interpreting that language to mean that the heterogeneous mixture excludes repetitive sequences.

According to Dako, the claim language supports a construction that excludes repetitive sequences because the specification supports that construction in statements and embodiments and in light of the prosecution history of the ’479 patent. In addition, Dako argues that the doctrine of claim differentiation is not an absolute rule. Where construction of an independent claim leads to a clear conclusion inconsistent with a dependent claim, the doctrine of claim differentiation must yield.

The CAFC held:

Although the district court erred in its reasoning as set forth above, we nonetheless will affirm the court’s construction of the heterogeneous mixture limitation. The court correctly evaluated the prosecution history and determined the proper claim construction. We also agree with the court’s conclusion set forth in its summary judgment decision that the patentees disclaimed embodiments that include repetitive sequences during the prosecution of the ’479 patent. Thus, the district court was correct in concluding that the accused products, which employ a mixture that includes repetitive sequences, do not infringe the ’479 patent.