Judges: Michel, Newman (author), Dyk

[Appealed from D. Mass., Judge Ponsor]

In Hutchins v. Zoll Medical Corp., No. 06-1539 (Fed. Cir. July 3, 2007), the Federal Circuit affirmed the district court’s grant of SJ of noninfringement of (1) Donald C. Hutchins’s U.S. Patent No. 5,913,685 (“the ’685 patent”); (2) his copyright for the “text of a computer program”; and (3) his copyright for a “Script and Word List.” The Federal Circuit also affirmed the district court’s denial of Hutchins’s motion under Fed. R. Civ. P. 60(b)(3).

The ’685 patent relates to a computer system for use in administering cardiopulmonary resuscitation (“CPR”). The computer system prompts rescue personnel to provide inputs corresponding to the victim’s age and whether the victim is conscious or not. The computer system then outputs the proper procedures for the rescuer to administer CPR to the victim. These outputs may include visual displays and voice commands.

The district court found that the accused Zoll Medical Corporation (“Zoll”) device was not a “general computer system” and lacked an “interactive display input,” as required by the asserted claims of the ’685 patent. The district court accordingly entered SJ of noninfringement.

On appeal, Hutchins argued that the Zoll device, which uses a dedicated microprocessor with limited functionality, is intended to interface and work in conjunction with a standard personal computer (“PC”), which is a general purpose computer, for purposes of review and archiving of data associated with a rescue. Rejecting this argument, the Federal Circuit concluded that Hutchins was estopped from reading the term “general purpose computer” to include a dedicated microprocessor because Hutchins added the term “general purpose computer” to the claims during prosecution to distinguish prior art with dedicated microprocessors. The Court further rejected Hutchins’s argument that the term “general purpose computer” was not present in each claim of the ’685 patent, because the term was recited in each independent claim and accordingly is incorporated into every dependent claim.

For the term “interactive display unit,” Hutchins argued on appeal that the district court failed to examine the allegedly infringing Zoll system and failed to compare the Zoll system to the patent claims. The parties agreed the term meant “a device for communicating with a computer which allows a user to respond to options presented by the computer by selecting from a menu displayed on a screen.” Slip op. at 6. Rejecting Hutchins’s arguments, the Federal Circuit agreed with the district court’s finding “that a reasonable jury could not find that the Zoll system employs an interactive display input as described in the ’685 patent, for the Zoll rescuer provides no input, but simply follows the instructions issued by the system on monitoring the victim.” Id. at 7. Specifically, the Federal Circuit noted that the Zoll system monitors the victim through electrical contacts placed on the victim, not through inputs provided by the rescuer.

Hutchins also argued that his copyright for a computer program covered systems that provide computerized display of CPR instructions and that the Zoll system “perform[ed] the same task in the same way.” Id. at 9. The Federal Circuit disagreed, finding that the district court “correctly held that Mr. Hutchins’[s] copyright is limited to preventing the copying of the specific computer program that he developed, and does not include coverage of all programs that guide the performance of CPR derived from information in the public domain.” Id. Specifically, the Federal Circuit stated that Hutchins failed to prove his “specific computer program, or any original aspects of his display in audio or video, was copied.” Id.

Hutchins also argued that the district court erred in not finding that the Zoll system infringed the “digital electronic programming” and “copyrighted digitized phrases” embodied in his copyright for a “Script and Word List” containing CPR-related words and phrases. Specifically, Hutchins argued that the Zoll system copied twenty-seven phrases from his “Script and Word List” copyright. The district court found only two identical phrases in common between the Zoll system and Hutchins’s “Script and Word List” copyright: “call for help” and “check breathing.” The district court also found three similar phrases in common between Hutchins’s copyright and the Zoll system: Hutchins’s “stay calm” (Zoll’s “remain calm”); “if no pulse, start CPR” (Zoll’s “if no pulse, continue”); and “give two breaths” (Zoll’s “start with two breaths”).

The Federal Circuit found no error in the district court’s determination that Hutchins’s “Script and Word List” contained standard CPR instructions. The Federal Circuit noted that “[c]opyright does not protect individual words and ‘fragmentary’ phrases when removed from their form of presentation and compilation.” Id. at 11. The Court stated that “the placing of standard words and phrases in digital form does not impart copyright exclusivity against all digitized usages of the words and phrases.” Id. In particular, the Court noted that “[t]he standard instructions for performing CPR are indispensable for applying CPR, and remain in the public domain.” Id. at 12. The use of these same or similar CPR instructions in the Zoll system did not prove Zoll copied original expressions copyrighted by Hutchins.

Hutchins also sought review of the district court’s denial of his motion under Rule 60(b)(3), which states that “the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for . . . fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Hutchins argued that Zoll committed fraud by failing to disclose a new version of the accused system during discovery and that the Zoll system was the subject of another litigation involving a cross-licensee of Hutchins. The Federal Circuit found that the district court did not abuse its discretion in denying Hutchins’s motion “[i]n view of the stage of the litigation, the nature of the subject matter that was assertedly withheld, the district court’s familiarity with the events, and the timing of the motion, . . . .” Id. at 13.