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Exergen Corporation v. Kaz USA, Inc.

Representative Claim(s)

’938 patent, Claim 49.

  1. [A body temperature detector comprising:

a radiation detector; and

electronics that measure radiation from at least three readings per second of the radiation detector as a target skin surface over an artery is viewed, the artery having a relatively constant blood flow, and that process the measured radiation to provide a body temperature approximation, distinct from skin surface temperature, based on detected radiation;]

wherein the artery is a temporal artery.

Posture:

Defendant’s Motion for Summary Judgment of Invalidity under §101 was Denied.

Exception Category: Law of Nature

“In applying step one of Mayo, the court is persuaded that, while the asserted claims are based in natural phenomena, they do not simply identify some previously unremarked upon natural law, or recite a perfunctory intersection of a couple of previously perceived phenomena; rather they reveal a novel combination of two previously known but uncorrelated scientific principles. This is a salient distinction.”

Significantly More: Yes

“As previously noted, that additional claim elements were known in the art does not necessarily defeat subject matter eligibility. ‘[A] new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made.’ … The additional steps were previously utilized to detect hot spots indicating injury or tumors, or surface temperature differentials. In the asserted claims, the additional steps solve a different problem. In order to make use of the temporal artery as a suitable location for body temperature measurement, a method or device must accurately locate the artery, which is under the skin surface and invisible to the eye. The temporal artery is small and its exact location varies from person to person. [The inventor] devised a method to ‘cross the T’ – by taking multiple measurements and detecting the highest temperature while scanning laterally across the forehead over the location of the temporal artery. The additional steps of the asserted claims are directed to aspects of this method. There is no evidence in the record that these steps were ‘well-understood, routine, [or] conventional[ly]’ used to detect arterial temperature beneath the skin before the introduction of [the] invention.”