Richard M Fleming v. Chad A Brown

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Richard Max Fleming, M.D., J.D. (Pro se)
  • Defendant: Chad A. Brown
  • Plaintiff’s Counsel: Pro se
• Case Identification: 1:17-cv-01141, D.D.C., 06/08/2017
• Venue Allegations: The complaint asserts that the U.S. District Court for the District of Columbia is the appropriate jurisdiction and venue, without providing a specific basis for venue over the defendant in that district.
• Core Dispute: Plaintiff, the inventor of a patented medical diagnostic method, alleges that Defendant has engaged in patent and copyright infringement by publicly misrepresenting himself as the inventor of the patented method.
• Technical Context: The technology involves a method for quantitative medical imaging, using nuclear isotopes to diagnose cardiovascular disease and differentiate between various tissue states (e.g., healthy, ischemic, infarcted).
• Key Procedural History: The complaint states that a cease and desist letter was sent to and received by the Defendant on June 5, 2017, three days prior to the filing of the lawsuit. This event may be relevant to the issue of willful infringement.

Case Timeline

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 9,566,037 - Fleming Method for Tissue and Vascular Differentiation and Metabolism (FMTVDM) Using Same State Single or Sequential Quantification Comparisons, issued February 14, 2017

The Invention Explained

• Problem Addressed: The patent’s background section describes conventional nuclear cardiac imaging studies as having a high error rate (approximately 35%) and being unable to reliably differentiate between types of heart disease, such as ischemic heart disease (IHD) caused by arterial narrowing versus vulnerable inflammatory plaque (VIP) disease. (’037 Patent, col. 1:45-59).
• The Patented Solution: The invention is a method that claims to improve diagnostic accuracy by quantitatively comparing nuclear images of a patient’s heart taken at two different time points (e.g., five minutes and sixty minutes) after a single "stress" event. (’037 Patent, col. 2:57-65). By measuring the change in radioactive isotope counts in specific regions of interest over this period—a phenomenon the patent refers to as "wash-in" or "washout"—the method purports to differentiate between healthy tissue, IHD, and VIP disease more accurately than conventional "rest-stress" comparisons. (’037 Patent, col. 3:5-15, col. 6:51-65).
• Technical Importance: The method proposes a significant shift from qualitative visual assessment of "rest-stress" images to a quantitative, "stress-stress" comparison, aiming to reduce diagnostic errors and provide more specific information about the underlying pathology, thereby improving treatment decisions. (’037 Patent, col. 2:51-56).

Key Claims at a Glance

• Independent Claim Asserted: The complaint appears to assert the entire patent, which contains one claim. (Compl. p. 8).
• Claim 1 Elements:
  • A method of yielding quantitative diagnosis of bodily pathologies.
  • Injecting a pharmacologic agent or conducting physiologic changes to produce regional blood flow differences.
  • Injecting an isotope.
  • Acquiring one or multiple images at multiple time-points within a determined region of interest (ROI).
  • Measuring the actual radioactive emissions of the isotope from the acquired images.
  • Creating a data array of the radioactive emissions at each time-point.
  • Calculating the percent gain or loss of emissions for the time period between time-points.
  • Comparing the calculated change with the expected change from radioactive decay.
  • Determining the degree of disease as a non-linear function (washin or washout), which includes differentiating tissue and metabolism.

III. The Accused Instrumentality

Product Identification

The accused instrumentality is not a physical product or service but rather the Defendant’s alleged actions and public representations. Specifically, the complaint accuses Defendant Chad A. Brown of using his LinkedIn profile and other internet postings to represent himself as the inventor of the technology covered by the ’037 Patent. (Compl. p. 6-7).

Functionality and Market Context

The complaint alleges that the Defendant has used internet postings to claim he developed the patented test and that the patent was issued to him. (Compl. p. 6). One visual in the complaint is a screenshot of a LinkedIn page listing "Inventors: Chad Brown" under a description of the ’037 patent. (Compl. p. 7). The complaint alleges these actions mislead the public and harm the Plaintiff’s reputation and licensing efforts. (Compl. p. 8).

IV. Analysis of Infringement Allegations

The complaint does not allege that the Defendant is practicing the patented method. Instead, it alleges patent law violations based on the Defendant’s alleged false claims of inventorship. The following table maps the elements of the patented method to the Defendant’s alleged conduct concerning the patent itself.

’037 Patent Infringement Allegations

Identified Points of Contention

• Legal Question: A central issue will be whether the Defendant's alleged false claims of inventorship constitute patent infringement under 35 U.S.C. § 271, as pleaded. The alleged actions may raise questions as to whether they are more appropriately addressed under other legal theories, such as false marking (35 U.S.C. § 292) or state law claims for unfair competition, which are not explicitly pleaded.
• Factual Question: The primary factual dispute will likely concern the content and context of the Defendant’s online postings. The court will need to determine what representations were made and whether they amount to a claim of inventorship or ownership of the ’037 patent, as alleged. The LinkedIn screenshot listing Mr. Brown as an inventor appears to be a key piece of evidence. (Compl. p. 7).

V. Key Claim Terms for Construction

While the core of the dispute appears to be factual (i.e., what the Defendant represented) rather than technical, the construction of certain terms could become relevant if the case proceeds.

• The Term: "quantitative diagnosis"

• Context and Importance: This term appears in the preamble and is foundational to the claimed method. Practitioners may focus on this term because its definition distinguishes the invention from prior art methods that relied on qualitative or visual assessments. Whether "quantitative" requires a specific numerical output versus a comparative but numerical analysis (e.g., a percentage change) could influence the patent's scope.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The claim language recites calculating a "percent gain or loss," suggesting that a comparative numerical value, not necessarily a definitive diagnostic score, satisfies the "quantitative" requirement. (’037 Patent, col. 14:36-39).
  • Evidence for a Narrower Interpretation: The specification repeatedly contrasts the invention with less reliable "qualitative" image comparison and emphasizes the use of "accurate statistical counts." (’037 Patent, col. 4:8-12). This could support an argument that "quantitative" requires a high degree of statistical precision and correction for factors like isotope decay.

• The Term: "non-linear function"

• Context and Importance: This term in the final step of Claim 1 describes the relationship between the measured isotope change ("washin" or "washout") and the degree of disease. Its definition is critical because it characterizes the analytical core of the invention.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The claim itself defines the function as "the gain, washin, or loss, washout," suggesting any mathematical relationship capturing this phenomenon could be considered a "non-linear function" in the context of the claim. (’037 Patent, col. 14:45-47).
  • Evidence for a Narrower Interpretation: The specification provides a specific example of a "parabolic relationship" to visualize the differentiation of disease types. (’037 Patent, col. 7:62-65, Fig. 7). A party might argue that the term should be limited to the types of parabolic or similarly complex mathematical relationships disclosed, rather than any relationship that is not strictly linear.

VI. Other Allegations

• Indirect Infringement: The complaint does not allege facts supporting a traditional theory of induced or contributory infringement, as it does not accuse the Defendant of causing others to make, use, or sell the patented method.
• Willful Infringement: The complaint alleges that the Defendant's conduct continued after he received a cease and desist letter on June 5, 2017. (Compl. p. 7). This allegation of post-notice conduct, combined with the allegation that the Defendant knowingly misrepresented his status as inventor, provides a basis for a claim of willful infringement. (Compl. p. 6).

VII. Analyst’s Conclusion: Key Questions for the Case

The resolution of this dispute will likely depend on the answers to two primary questions:

1. A foundational legal question: Can the act of falsely holding oneself out as the inventor or owner of a patent constitute "patent infringement" under 35 U.S.C. § 271, as alleged in the complaint? The court will need to determine if the pleaded facts map onto a cognizable claim for patent infringement or another, unpleaded cause of action.

2. A core evidentiary question: Does the factual record, particularly evidence from the Defendant’s online presence, establish that he unambiguously and publicly claimed to be the inventor or owner of U.S. Patent No. 9,566,037? The LinkedIn screenshot presented in the complaint appears to be central to this inquiry.