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Patent infringement suit related to argon gas-enhanced electrosurgical products
Erbe Elektromedizin GmbH v. Canady Tech. LLC, 08-1425, concerned the parties' various challenge to the judgment of the district court, in a patent infringement suit involving three competitor companies that create argon gas-enhanced electrosurgical products for electrosurgery.
The court held tha, because the district court's construction of "low flow rate" is correct, and because there is no evidence that the accused probes infringe the asserted claims in the '745 patent, the district court's judgment of non-infringement is affirmed. The court also held that the district court correctly granted summary judgment against plaintiff as to its trademark and trade dress claims based on the court's determination that the color blue is functional and has not acquired the requisite secondary meaning. Lastly, the district court properly granted summary judgment on defendant's antitrust counterclaims in favor of the plaintiffs as the "Sham litigation" exception to the Noerr-Pennington doctrine is not warranted in this case because the record demonstrates that plaintiff had probable cause to bring this patent enforcement litigation, and defendant failed to meet its burden of seeking discovery on its antitrust claims and failed to establish some genuine issue of material fact as to the other predatory acts is argues the district court ignored
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