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Viveve Inc. v. Thermigen LLC

Representative Claim(s)

  1. A method for remodeling a therapeutic zone within a target tissue, the target tissue comprising tissue underlying an epithelium of female genital tissue comprising at least one of vulva, introitus and vagina tissue, the method comprising:

heating the target tissue, and

remodeling the therapeutic zone of target tissue, wherein the heating includes heating a mucosal surface of the labia minora.

Posture:

Motion to dismiss.

Exception Category: None

[R]emodeling [] is not a law of nature, and is not simply the result of heating. . . . Rather, remodeling is a process comprising a doctor’s application of specific concrete steps to specific tissue under particularized conditions, which is simply predicated on the ability of collagen to be physically transformed by heat.”

“Like the court in Rapid Litigation Management, here the Court is presented with a method patent comprising concrete steps, premised upon a discovery of natural law rendering the relevant subject matter amenable to certain processes.”

“The[] claims provide examples of how the ’511 patent dictates, with specificity, the concrete steps which a doctor should take in performing the claimed method.”

“[T]he ’511 patent claims more than the observation or identification of a natural law or phenomenon – it claims the application and synthetization of a natural law into a concrete process, which builds upon the subject matter’s capability of undergoing the process.”

Significantly More: Yes

“Even if the Court was persuaded that the ‘511 patent was ‘directed to’ a natural law or natural phenomenon (which it is not), the ‘511 patent recites an inventive concept, rendering it subject matter patent eligible.  At step two of the Mayo framework, claims directed to a patent ineligible concept are nevertheless not deficient under § 101 if they ‘improve an existing technological process.’ [Citing Alice v. CLS Bank]”

“[T]he Court finds that the claims of the ’511 patent recite an improved treatment technique that is inventive over known techniques in the prior art. While the denaturation of collagen through application of heat was known and used for medical and cosmetic purposes in the prior art, the only known methods for tightening the relevant tissue required surgical procedures which carried with them the risk of scarring.”

“[T]he ’511 patent constitutes an improvement over the prior art.”