Nazir Khan v. Artivion, Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NAZIR KHAN,
Plaintiff-Appellant
IFTIKHAR KHAN,
Plaintiff
v.
ARTIVION, INC.,
Defendant-Appellee
______________________
2023-2347
______________________
Appeal from the United States District Court for the
Northern District of Georgia in No. 1:21-cv-02291-SCJ,
Judge Steve C. Jones.
______________________
Decided: July 16, 2024
______________________
N AZIR K HAN, Burr Ridge, IL, pro se.
K ATRINA M. Q UICKER, Quicker Law, LLC, Atlanta, GA,
for defendant-appellee. Also represented by K ATHRYN
ALLISON VANCE.
______________________
Case: 23-2347 Document: 43 Page: 1 Filed: 07/16/2024

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KHAN v. ARTIVION, INC. 2
Before M OORE, Chief Judge, L OURIE and STARK, Circuit
Judges.
P ER CURIAM .
Nazir Khan,1 owner of U.S. Patent No. 8,747,344 (“’344
patent”), filed a complaint against Artivion, Inc.2 (“Artiv-
ion”) in the United States District Court for the Northern
District of Georgia (the “Georgia Action”). Khan alleged
that a product made by Artivion, the “HeRO Graft,” a de-
vice used for hemodialysis, infringed claims of the ’344 pa-
tent literally, under the doctrine of equivalents, and also
under 35 U.S.C. § 112(f), governing means-plus-function
claiming. On the same day, Khan filed suit against another
company, Merit Medical, Inc. (“Merit Medical”), on the
same causes of action, in the United States District Court
for the District of Utah (the “Utah Action”). Merit Medical
had purchased the HeRO product line from Artivion.
Khan’s complaint in the Georgia Action, therefore, was
based on alleged infringement by the same product accused
of infringing the same claims in the Utah Action. After the
district court entered judgment of non-infringement for
Merit Medical in the Utah Action, the court in the Georgia
Action granted Artivion’s motion to dismiss based on the
collateral estoppel effect of the Utah Action judgment.
Khan filed a timely appeal, over which we have juris-
diction. See 28 U.S.C. § 1295(a)(1). Khan focuses his ap-
peal on the purported merits of his infringement claims,
1 The amended complaint, filed on September 1,
2022, by Nazir and Iftikhar Khan, is the operative com-
plaint. Iftikhar Khan is not participating in this appeal.
2 Artivion formerly did business as CryoLife, Inc.,
which is the name used in the complaint (along with Hem-
osphere, Inc., which was dismissed as a party after it
ceased operating on May 15, 2012).
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KHAN v. ARTIVION, INC. 3
barely addressing collateral estoppel. Artivion argues that
collateral estoppel applies and, therefore, the district court
properly dismissed Khan’s complaint. We agree with
Artivion.
By separate order issued today, we have affirmed the
Utah court’s judgment of non-infringement. See Khan v.
Merit Medical Systems, Inc., No. 23-2329 (Fed. Cir. Jul. 16,
2024). We now affirm the district court’s dismissal order
in the Georgia Action.
“On procedural issues not unique to this circuit’s exclu-
sive jurisdiction, we apply the law of the regional circuit,
which in this case is the Eleventh Circuit.” Dana v. E.S.
Originals, Inc., 342 F.3d 1320, 1323 (Fed. Cir. 2002). This
includes the review of a district court’s determination of
whether collateral estoppel applies, which we review de
novo. See Soverain Software LLC v. Victoria’s Secret Direct
Brand Mgmt., LLC, 778 F.3d 1311, 1314 (Fed. Cir. 2015);
Matter of McWhorter, 887 F.2d 1564, 1566 (11th Cir. 1989).
The Eleventh Circuit applies clear error review to factual
determinations. See Bryant v. Rich, 530 F.3d 1368, 1377
(11th Cir. 2008). It “subject[s] [a] district court’s decision
to dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b) to de novo review.” Pleming v. Universal-
Rundle Corp., 142 F.3d 1354, 1356 (11th Cir. 1998). For
issues addressed by the district court that are particular to
patent law, such as whether claims for patent infringement
are identical in two different actions, we apply Federal Cir-
cuit law. See Aspex Eyewear, Inc. v. Zenni Optical Inc., 713
F.3d 1377, 1380 (Fed. Cir. 2013).
In the Eleventh Circuit, a party seeking application of
collateral estoppel “must show that: (1) the issue at stake
is identical to the one involved in the prior proceeding;
(2) the issue was actually litigated in the prior proceeding;
(3) the determination of the issue in the prior litigation
must have been ‘a critical and necessary part’ of the judg-
ment in the first action; and (4) the party against whom
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KHAN v. ARTIVION, INC. 4
collateral estoppel is asserted must have had a full and fair
opportunity to litigate the issue in the prior proceeding.”
Pleming, 142 F.3d at 1359. We find no error in the district
court’s determination that each of these elements is met
here.
The Utah Action and the Georgia Action both involved
the identical issue: whether the HeRO Graft line of prod-
ucts infringe claim 13 of Khan’s ’344 patent. The fact that
counterclaims for non-infringement were asserted in Utah
but not in Georgia, as Khan emphasizes, makes no differ-
ence. The pertinent inquiry for collateral estoppel is
whether the identical issue is asserted in both actions, not
whether additional issues (with respect to which no one is
asserting collateral estoppel) are also litigated in one ac-
tion and not the other. See generally Cromwell v. Sac
Cnty., 94 U.S. 351, 353 (1876) (“[T]he judgment in the prior
action operates as an estoppel only as to those matters in
issue or points controverted, upon the determination of
which the finding or verdict was rendered.”).
The identical issue of infringement was also actually
litigated in both cases. Khan does not dispute this undeni-
able reality, instead turning his complaints to the manner
in which the Utah Action was litigated. See Reply Br. at
16 (arguing case was “unfairly, wrongly litigate[d]” in
Utah). His dissatisfaction with the result in Utah does
nothing to change the fact that the very same issues he
sought to litigate in the Georgia Action had already been
actually litigated in the Utah Action. See Uniloc USA, Inc.
v. Motorola Mobility LLC, 52 F.4th 1340, 1350 (Fed. Cir.
2022) (“Generally, collateral estoppel cannot be denied be-
cause [a party argues that] the [prior] decision was incor-
rect.”); see also In re St. Laurent, 991 F.2d 672, 675 (11th
Cir. 1993) (explaining that collateral estoppel “bars reliti-
gation of an issue previously decided”). Additionally, as we
already noted, we have today affirmed the judgment of non-
infringement in the Utah Action.
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KHAN v. ARTIVION, INC. 5
The identical, actually litigated issue of patent in-
fringement was also plainly “a critical and necessary part”
of the judgment in the Utah Action. The Utah court could
not have entered judgment of non-infringement without
determining that Khan could not prove the HeRO Graft in-
fringes claim 13 of the ’344 patent. See S. App’x 172 (Utah
District holding that “there is no literal infringement of
Claim 13 as a matter of law”); S. App’x 172-77 (holding that
doctrine of equivalents and means-plus-function do not ap-
ply or create question of infringement); S. App’x 187 (grant-
ing summary judgment of non-infringement in favor of
Merit Medical). That is the very question that is central
to, and therefore “a critical and necessary part” of, Khan’s
complaint against Artivion here in the Georgia Action.
Finally, Khan had a “full and fair opportunity to liti-
gate the issue” in the Utah Action. He filed a complaint
against Merit Medical on June 1, 2021 and moved for sum-
mary judgment of infringement after both sides attached
evidence to their briefs. He also filed a brief opposing Merit
Medical’s motion for summary judgment. Mr. Khan had
numerous filings, over a year of proceedings, and a pleth-
ora of chances to address the relevant issues directly. This
factor, then, was satisfied.
We have considered Khan’s other arguments and find
them unpersuasive. Accordingly, because the district court
rightly found Khan is collaterally estopped from proving
infringement on any of the grounds he asserted in that
court, we affirm its order dismissing his complaint.
AFFIRMED
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