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IFlow Canceled and Narrowed Patent Claims for Infusion Devices byConceding...

Zone Medical, LLC, the worldwide distributor for the Solace's174; Post Operative Pain Relief System, requested in 2007 that the U.S. Patent Office reexamine I-Flow'ss 's481 Patent, entitled Compact Collapsible Infusion Apparatus. In September 2008, the Patent Office issued an official action finding all claims of the 's481 Patent invalid over prior art. I-Flow conceded the correctness of the Patent Office findings and offered to cancel six claims of the patent and to narrow all remaining claims.

On April 22, 2009, the Patent Office issued a Notice that it will implement the new limitations and restrictions to the claims of the 's481 Patent. Six claims will be stricken and all remaining claims narrowed through addition of new limitations. Not a single claim of the 's481 Patent as it issued in 1994, will remain intact. In the Notice, the Patent Office discussed the new limitations (loosely positioned and defining a chamber between) as follows:

In the non-final action dated 9/29/08 a rejection of claims 1 and 15, including others, was made under 35 U.S.C. 102(b) as being anticipated by Block Medical (90311152.4). The new claim language of 'sloosely positioned's and 'sdefining a chamber between's among all the limitations defines over Block Medical. Specifically, the previous rejection identified the non-stretchable housing means or collapsible shell to be elements 24 and 26 as described in Block Medical. However, elements 24 and 26 are not loosely positioned around the sleeve means (22). Furthermore, Block Medical does not define a chamber between the sleeve means (22) and the collapsible non-stretchable housing means (24/26). Therefore, Block Medical no longer anticipates claims 1 and 15. [Notice of the Patent Office, pages 2-3.

(Following I-Flow'ss concessions to the Patent Office, claims 1 and 15 are the only independent claims and all remaining claims are therefore also narrowed.) The new limitations have therefore narrowed the claims of the 's481 Patent to overcome prior art rejections for anticipation. Without the new limitations, the 's481 Patent covers the prior art and is invalid.

In light of the narrowing of the 's481 Patent, I-Flow surrendered claims for infringement due to intervening rights under 35 U.S.C. 's167;307. For example, I-Flow has alleged that the Solace's174; Post Operative Pain Relief System infringes the 's481 Patent. However, since I-Flow agreed to narrow the 's481 Patent, those allegations are now completely baseless as they are barred under the laws of intervening rights.

I-Flow first alleged in September 2006 that the Solace's174; pump infringes the 's481 Patent, and again in June 2007 and in January 2008, when it filed suit in the U.S. District Court for the Southern District of California against Apex Medical Technologies, Inc. and Zone Medical, LLC., the manufacturer and distributor of the Solace's174;, respectively. Zone and Apex always maintained that I-Flow'ss allegations were a groundless attempt to burden a competitor with a superior product.

For about two years, I-Flow has engaged in a campaign of unsupported, false rhetoric against the Solace's174; pump in the market-place, including allegations of infringement of the 's481 Patent. In contrast to I-Flow'ss vocal campaign in the market-place, however, I-Flow failed to test its allegations in Court. For example, I-Flow never asked the Court for a preliminary injunction and I-Flow never asked the Court to rule on I-Flow'ss infringement allegations, as would be expected if I-Flow actually believed that its allegations had any merit. It is apparent that I-Flow'ss allegations lack merit and with the Patent Office narrowing the 's481 Patent, I-Flow'ss infringement allegations are now far below the limits of good faith.

I-Flow'ss infusion pump, the On-Q's174; product line, contains natural rubber latex. Zone Medical'ss Solace's174; Post Operative Pain Relief System offers state of the art latex-free technology with enhanced performance and safety for all users concerned with latex allergies and latex sensitivities.

Zone believes that I-Flow is using baseless and repetitive lawsuits to avoid competing with Zone'ss Solace (www.solacepainrelief.com) based on product features, benefits, performance, and value.

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