-DEM W.L. Gore & Associates, Inc. et al v. Medtronic, Inc. et al, No. 2:2010cv00441 - Document 92 (E.D. Va. 2011)
Court Description: OPINION AND ORDER; the Court issues this Opinion and Order as the construction of the disputed claim terms in the '870 patent (see order for specifics). Signed by District Judge Mark S. Davis on 12/13/11 and filed on 12/14/11. (jcow, )
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division W.L. GORE & ASSOCIATES, GORE ENTERPRISE INC., HOLDINGS, and INC., Plaintiffs, v. Civil Action No. MEDTRONIC, INC., INC., 2:10cv441 MEDTRONIC USA, and MEDTRONIC VASCULAR, INC. , Defendants. OPINION AND On for the patent October 25, purpose at 2011, of issue construing in this the briefs submitted by the Markman hearing, and issues this adopted by Opinion the issue "Intraluminal Plaintiffs, Holdings, the After record Order conducted eight parties, a Markman disputed careful the the the hearing claims in consideration arguments before detailing FACTUAL AND in Stent W.L. Inc. specializing the case. the and Court advanced Court, claim the the of at Court constructions Court. I. At the ORDER in this case Graft," Gore & PROCEDURAL BACKGROUND is patent Associates, (collectively "Gore") fluoropolymer Plaintiff's number Inc. are products l patent 5,810,870 and Gore manufacturing and are best titled ("'870"). Enterprise companies known for their GORE-TEX USA, fabrics. Inc., and "Medtronic") medical are alleging Medtronic's Talent Stent Graft which are stent graft. timely 2010, patent companies directed to methods Pursuant the carefully to a claim at Graft 16, of which in a against complaint the Gore and and making of a the alleges Talent the the briefs heard patent, intraluminal at the parties issue court argument that Abdominal *870 tubular order, filings, court its 19 scheduling such (collectively specializing filed construction reviewing hearing Stent 12, Medtronic industry. Gore claims Inc., Inc. infringement. Thoracic infringe filed Markman 3, Medtronic, Vascular, manufacturing September Medtronic eight Medtronic products and technologies On After Defendants, have here. conducted regarding a the disputed claim terms. II. In Markman, explained The the United for, Constitution limited Right Art. of to § 8, in "letters Stat. granted importing 8. 1790, it Act of using, the like "the patented their to for 10, promote for exclusive Discoveries." for the 1790, exclude in the exercised modern invention," construction: the and sale, succinctly securing by first provided Apr. right offering "[t]o Inventors Writings Court claim Arts, Congress when which, inventors making, and respective cl. of, Congress useful Authors PROCEDURE Supreme importance and patent," 109, States empowers to their I, and Science Times authority 1 the basis Progress of CLAIM CONSTRUCTION ch. this issuance 7, § 1, counterparts, others from selling, or exchange for full Law disclosure and been Practice understood scope to of an [the to McClain the by First, 3 E. (3d a as such enable use Lipscomb, more which regards "A covers manufacture, a never person on and the scientific function or explanation Lipscomb 21.17, § the scope and functions of invention, a but by making 82. a 3 noncritical 35 pp. a out the § 112. machine, nor operation." to a but either, § or and design, claim . for one which a the 6 "define[s] 11:1, exact at 280, copies of an heart of an "the language change," . also 183-184 U.S.C. or id. go literal . see poin[t] The only that the art includes process, grant," products 112; the exact requirements of matter, not the matter result of of their forbid avoids the 315-316. patent to invention but at a and § patent secures are document. in invention." composition Under describing "particularly his [and] them." (1891). §10:1, subject "secure to patent U.S.C. (listing a to concise, Patents the as a skilled 35 long exact objectives specification clear, has the open 424 of Patent entitled, still these elements Second, clai[m] applicant is 419, (Lipscomb) "claims," distinctly claim U.S. same." specification). he system, Walker 1985) which 141 any It describe manufacture is a Schwartz, 1995) . must its full, the ed. what contains and ed. to H. of distinct "in to make all American it (2d patent and public two invention terms 33 a Ortmayer, modern served 1, invention, invention the v. an that patentee] apprise to of of claim ... Characteristically, is known rest as on the ma[de], within patent Victory that the product infringement, allegations authority invention, in an Schwartz, Schwartz, that the . . . supra, supra, at defendant ." infringement of charge at what 75, and "without use[d] or [sold the] patented United States during the term of claim process," determination lawsuits supra, the therefor patent or patent Schwartz, the "what at 80; 35 "covers which the in the also § 271(a). a finding alleged turn words see U.S.C. requires suit in 3 infringer's necessitates the claim Lipscomb § a mean." 11:2, at 288-290. Markman v. Westview Instruments, 517 U.S. 370, 373-74 (1996) It is requires scope a and "the well-settled two-step meaning properly infringing 1448, Westview bane), of (Fed. Instruments, 517 must principle' of patent invention to which exclude.'" 2005) Water 1576, see 1582 claims also (Fed. themselves are v. (en 52 F.3d 370 law that the v. AWH Systems, ... 381 v. {"[W]e to bane) is define determines to (Fed. In of a 1303, 1111, (en 1115 of this define the right to 1312 Inc. the scope v. 'bedrock the Conceptronic, the a patent Water, to F.3d Markman is F.3d look 138 Cir.1995) entitled F.3d second, conducting "[i]t the allegedly Inc., (citing 976 415 and the Techs., Innova/Pure Corp. 1996) FAS claims Corp., Inc., Vitronics compared that patentee (quoting Cir. 'the infringement asserted" 967, remembered of court (1996)). be bane) Filtration 2004)); Inc., Phillips (en 1998) the claims Corp. U.S. it "First, claims Cir. determination patent Cybor analysis, Cir. the construed aff'd, a analysis: device." 1454 that (Fed. v. Safari (Fed. Inc., words the Cir. 90 F.3d of the patented invention."). A. The of a Federal claim meaning,'" 'are and Claim Construction Principles Circuit has generally that "the repeatedly given ordinary their and stated that ordinary customary and "the words customary meaning of a claim of term is ordinary the skill invention." 90 F.3d which 1582). begin well-settled skilled in to pertinent and This the is the be and understood field of an as person, of the skill of the used in Thus the reviewing viz., the a of their of any The describe the as court would in that starts same patent be they person the the the field. court by in are the lexicography must by "the construed. knowledge to from persons patents field are the the Federal Circuit: words in interpreted by in used inventor's process that the have are interpreted and and understanding to upon typically claims the usage technology. that read and that decisionmaking would to the of baseline based others person Vitronics, are by skill is a time (quoting and noted by eyes and invention the read As with words understood be to the objective invention ordinary field, meaning inventor's to whose documents in "an have at 1312-13 inventors the deemed patent special that 1313. of meaning at provides of through person question interpretation" at person invention term would in F.3d intended Id. the art 415 field art." Such the claim the is that understanding addressed It in Phillips, at to meaning the resources specification and the prosecution history. Id. (quoting F.3d 1473, the of and the 1477 ordinary skill claim Multiform in (Fed. meaning the art Cir. of of be in the Inc. 1998)). claim may construction application Desiccants, such widely Medzam, However, language readily v. "[i]n as understood apparent even cases involves accepted to Ltd., some cases, by person lay little meaning 133 of a judges, more than commonly understood words." 805 Cir. {Fed. Finally, cannot when add "abstract scope. 1331, F.3d 2007) 1577, (Fed. 1584 matter how courts do not the should Federal provide claim consistently claim can and claims." claims, read in view Id. at 1315 Vitronics, 90 of examine has v. of at Apotex 800, 1314). the or or F.3d Court appeal narrow Corp., to their 403 F.3d Rodime, PLC, 65 well is v. settled that no fairness or policy making, 415 to Be Considered of the as "[b]ecause the disputed claim that to patent, the F.3d at "do at the are phrases, specification. claims meaning themselves of particular normally usage of the same of or a term term used in in one other 1314. not Markman, 1582 the "the terms meaning terms and the claim stand specification, (quoting F.3d claims broaden ("[I]t stated guidance however, the 1995) F.3d phrases, Quantum Corp. meaning illuminate Phillips, The the throughout often to of Evidence first substantial and the Corp. 2005); 415 483 claims."). Circuit terms," from temptations Types determining Court The the redraft B. terms Beecham Cir. Corp., Phillips, words Cir. (Fed. great Stryker considerations" SmithKline 1339-40 v. claim subtract policy LLC (quoting construing or See In Acumed of 52 (stating 6 alone" which F.3d that and they at "the are 979); "*must a be part.'" see also specification is always highly Usually, it meaning 1478 relevant is of a {stating term informed, as of claims the needed, must be USA, 517 defined in only U.S. a Phillips, recognize that given a meaning it inventor's In should claim at a 1367, at would by the otherwise to 133 F.3d at a which be {Fed. arose, a and & claim the a "[t]hus Co. the v. Teva 2003); "term see can be instrument that such as "our a cases definition differs In and with special that The manner Cir. (stating possess. the Merck reveal the history."). consistent that patentee it invention, with 1316 guide describes 1371 (stating specification may term from part." comports F.3d from cases, the the lexicography governs."). addition consider to the the record of Trademark Office ("PTO"), examination of claims prosecution complete the 389 are to analysis. understanding for patented as best Dessicants, source statute, so that 415 the single prosecution the F.3d way whole."); to by they 347 the construction Multiform the using which Inc., is best construed of also Markman, by and claim specification required making specification, Pharms. "[t]he is as it term."); that technical process the dispositive; disputed specification, to the the and specification, history, proceedings including patent. 7 the which before prior Phillips, the consists the art 415 Court of Patent cited F.3d the and during at 1317 (citing 399 of Autoqiro (Ct. how often how Cl. the making the the Cir. The the that "all history, including learned technical 1317 v. the was external expert dictionaries and may in the art Expert to testimony provide see also might also can be background explain how an court's understanding the 52 the prosecution, F.3d F.3d of at be." 1582- 1371, 1384 consulting is to exclude patent and testimony, at the Court technology use evidence, F.3d provide one 1318; 402 extrinsic to Markman, underlying at "can otherwise 90 purpose inventor the F.3d the and whether of would Inc., evidence demonstrating and Vitronics, examine of 415 by 391, the any disclaimed during prosecution). treatises." skill it F.2d patent" course construction understanding of the Indus., claim the language than that also evidence in 384 "provides invention (citing PPG history claim narrower in may includes and the (stating history Court of States, understood invention at United prosecution inventor scope Chimie interpretation v. understood 2005) prosecution The the F.3d also America meaning claim 415 see (Fed. and limited Phillips, 83); PTO inventor inventor of 1967)). inform the Co. the claim Vitronics, prosecution dictionaries, 980. and 90 For with the example, a way better in terms. F.3d which Phillips, at 1584 useful: on invention of the technology works, the to at ensure technical issue, that aspects which of to the the n.6. patent is consistent with that of a person of skill in the art, or to establish that a particular term in the patent or the the pertinent Phillips, 415 prior art has 1318; F.3d at see Hewlett-Packard Co., "However, extrinsic while relevant 'less art,' significant F.3d 1317 F.3d 858, Nederland Cir. BV Federal sources of 'can claim Bard, Trade Pitney 1308-09 in Bowes, (Fed. shed has] intrinsic Int'1 with are in Inc. v. U.S. (quoting Comm'n, 366 on that 1311, is "the Phillips, 415 Corp., Vanderlande F.3d the it determining Surgical v. 1999). light explained record Inc. Cir. useful language."'" 2004) an being of litigation.'" 90 F.3d at greater to taken in F.3d 388 Indus. 1318 (Fed. Texas on (Fed. have been used 415 1322 F.3d the Digital 9 public {quoting Inc. which definitions commonly in claim the value in advance Vitronics, cautions that discounted expressly in has the comparable the ... Circuit Systems, 2002), dictionary at the Federal Circuit or definition to Cir. dictionaries, understanding 'accessible Federal 1193 in dictionary However, the emphasis and source 1585).1 usage "[djictionaries assist "[a] Phillips, general that words that unbiased Phillips, 308 of and to noted useful meaning of approach respect has often construction," Inc., C.R. 1298, Circuit Cir. Circuit understood In meaning 2004)). Finally, 1 the (Fed. v. particular also evidence meaning {citing 862 F.3d Federal than operative at 182 [the legally a field. the v. the of Telegenix, court claim placed terms. "sa general-usage evidence of the meaning' dictionary may properly be no it by the a term be by the Vanderlande, "different for based upon the the the court's is may same used rely in F.3d words. of on beyond same at somewhat a 415 is treatise F.3d different not 1322 sets rise dictionary rather or by than of fall editor, uninformed dictionary should Additionally, should decision, the "[t]here in 1321). particular one way use of what and Phillips, A claim a art-specific "the patent," the contain independent to protection patentee." preferences specification, that inventor's 366 dictionaries definitions overcome claim term," a cannot patent that would (quoting of extend afforded guarantee as dictionary or the another." Id. With examine the adopted foregoing the patent Phillips, by the 415 F.3d court in placed dictionaries, intrinsic approach for used the acknowledged and particular to that there was court as claim meaning evidence." will now "no 10 magic not long that Phillips, in is 415 methodology too little as the on the proper construction, formula" from for 1324. claim considering sources unambiguous at it as and reaffirmed claim those F.3d such specification "barred as expressed sources and Innova follow is the Circuit and to ... the Federal Markman, a Court concern extrinsic encyclopedias courts that the the valid, on particular The sources contradict intrinsic and Vitronics, district was reliance in mind, ("Although Digital much history."). construction, any Texas too in disputed claim terms. 1319-24 treatises, in approach the at sources, prosecution but and principles in are light not of III. ANALYSIS OF THE DISPUTED CLAIM TERMS 1. Stent a. Proposed definitions Gore: "one or more interconnected wires defining a substantially cylindrical plane" Medtronic: "implantable device to maintain the patency of a vessel" b. Discussion The differ dispute on whether functional disagree wires" to this into whether proper in parties term is Medtronic's limitation as is The over definition the claim Gore's light use of the appear to two-fold. First, improperly term. of the Second, the term imputes the dispute exists difference which of between functions Claim 12 comprised between a stent that a "selecting stent" parties which component describes of adjustable as a the function and of the function 57:14, of component" same a Docket of stent No. a alone 87). stent a least second 1 During their Markman argument, of was is to "stent alone the step there The a is a stent language first tubular, stent However, and graft." process; one whether a step is diametrically involves "affixing a Gore stated that they agreed the to However, graft as functions two-step at parties specification. agree the a "interconnected alone is to maintain the patency of a vessel or lumen.1 a parties "hold they different function. 11 open argued and a vessel." that not the limited (Tr. "stent to the tubular covering to Medtronic argues an already will a that They of there is available patency of The "stent" only (Id.). a and or "stent patent focuses claim stent vessel and after thus can the selected must step by to function a is becomes additional described in arguing claims stent "stent" stent the responds of that the as "selecting" second have vessel 9:31-43). the patency of the that Gore the and that of an Background only has no there on graft: vessels, is that functions example, There which that graft" For aneurysmal only language the col "maintaining affixed, 1:37-41). one agrees potential occluded stent, aneurysmal limits to is graft" the *870 or the that in the "commercially to "maintain the vessel." a intraluminal The at in which Court the is an {12; step merely requires function of it (Id. one" first available stent nothing specification stent." that repairing specification. . covering a "intraluminal function 37) . argue after . the inherently have the completed, *870 . commercially vessel." an the been the difference specification "intraluminal of between Invention stent graft." section "maintain patency the for an after to of an functions (1) re-opened"; aortic (2) arteries." discussion describes 12 and the of a "to (Id. repair at "stent" "stent" a describes potential corresponding simply a two particularly language is as 1:33, alone. being "diametrically adjustable" and as "having an exterior luminal Id_^ at it has surface and a wall." been argued by structure designed improperly imports claims suggest See 1367 Cir. claim a Ecolab, 2001) see also, 266 1371 1367, "import into particularly when limitations"). according improper to Cir. claim read intraluminal stent of v. do White 2001) (noting recites if the it is one as the of term the described specification, the a Inc., improper structural was that above in specification, "stent" stated 1358, such is purely argued the F.3d Indus., it the particular import that only in recited Consol. from graft, of not not function only section we 264 a function, in Inc./ or vessel" nothing any is device a to claim the its Invention Co. Additionally, to function a of when a Furthermore, as patency Envirochem, a Toro stent limited patentee, (Fed. the the be v. ("Where limitation."); a limitation should Inc. 9:31-43). defining functional the F.3d that "maintain by to itself to "stent" function. (Fed. Gore (12; surface, construed it would functions in the while be of an Background excluding the other. In "strive than reviewing to capture strictly embodiments or the intrinsic the limit[ing] allow[ing] scope the the of record, the this actual scope of claim language 13 the Court must invention, claims to to become also rather disclosed divorced from what the Retractable Cir. a Techs., 2011). claims in light the will the term. a in Cir. 2001) no the line and the of limitation ("Where 1305 between 415 importing F.3d into we graft, its Inc., is do not not (Fed. construing at 1323. and particular stent function patentee, 1296, improperly one Envirochem, a invention." specification, intraluminal v. the F.3d Phillips, mention Inc. the fine See functional by a is 653 specification make Ecolab, itself is language, used a conveys Becton, claim. See (Fed. claim their history import v. there claim "stent" not 1367 of into the prosecution for Inc. However, limitation Because specification the function this Court construction 264 F.3d recited import of 1358, in the such a limitation."),2 The second proposed wires dispute at construction forming a issue for describing substantially this a term stent cylindrical is as whether Gore's "interconnected plane" is appropriate. 2 Medtronic attempts to support its functional definition with a case that patency defined of a Vascular, Inc., However, in explained that a Fed. case the as as reason an of mechanically (emphasis patent at the patent added). issue, 994, the 997 Federal was the Since no Court such does persuasive. 14 did 2006). improperly the invention device" that language find the Medtronic specifically not affected not v. Cir. because stated the maintain (Fed. support clearly keeping to Sys. Circuit definition "endovascular specification Id. the implanted Cardiovascular limitation devices "for "device Appx. cited, functional categorized a Advanced 182 the incorporate was "stent" vessel." and stents vessel appears this the were open." in the argument Gore supports every the its example in the specification Markman appear members" as The with the 3:49-51) ("While perforated quantity Medtronic abstract may that and unnecessary in the Resp. the the and Court defines PI. finds the is 11, "stent." that 5, is neither of better No. excludes section No. party's 15 the 72). size agrees with a stents Based is the the or Court is referenced patent. on too device the (Def. above, construction adopts a shape, Last, ^870 proposed Court wire, "plane" as col interconnected" certain of the ("870: Court 70) . better in metal a the encompasses suitable more the 87). members" described or the Docket No. from the in "elongated referenced defining Docket Accordingly, offered properly made at language, 61:22, Next, Docket described embodiments. as "one Invention and that "interconnected claim more out However, words examples used."). stent Responsive and stent stents "elongated perforations be Resp. (Tr. shown pointing wire. the preferred stent the history that "stent" by actual alternative. potentially finds that the phrase of of metal prosecution construing Summary 11; also (Def. that in having instead structure. finds in the sleeve of specification possible and all conceded first the specification and the a possible Court comports all Gore or and formed nowhere specification, construction patent are hearing, wires" proposed best following construction of the claim substantially cylindrical term: "Elongated members forming a and rigid structure." c. Definition "Elongated members forming a substantially cylindrical and rigid structure" 2. Wall a. Proposed Definitions Gore's definition: defined by the wires Medtronic's the "a substantially cylindrical plane of the definition: stent which is stent" "structure spanning the length of capable of having a multiplicity of openings" b. Discussion Both sides constructions are acknowledged of "stent", interrelated. construction between should the be "structure" of parties referred as "wall" Thus, "stent" during this when to as the "plane" proposes. 16 arguments "multiplicity must defining construing Medtronic and Court in a oral term as Gore of consider "wall." A "wall" Gore that is openings" its adopted key dispute whether proposes, argues that the or as it a "structure" is inappropriate because it implies is more appropriate because the wall of oral a the it stent. was However, not their "structure" it acknowledged that in it and 87) . to claim "wall" to the not Medtronic the position had will language a tubular covering." wall" prosecution history wall internal and Docket wall as does stent. the a as '870 that film "plane" not appear Rather, the to not in "plane" rather, its on col. Docket because No. the openings to "affix in stent together therethrough . a (emphasis definition perforations affixing of description expandable a referring 9:33-36) its as openings view, which that Medtronic of multiplicity argues covering wall appropriate surface "an a 87:18-20, examiner's is the having a or openings of both . . ." an (JA- added). that as have "wall" "a patent the finds and (Tr. specified (emphasis Court a a stated multiplicity more be states, having a that, Medtronic accommodate 66) to patent external No. First, defined there Medtronic solid; tube. was and defining be explain well the by have solid (12; means which will to Additionally, with 167, on as consistent therein a requires the distinct that "structure" through added). wall wall is defined by the structure argument, therefore be went as at solid is a an "wall" separate by more appropriately "structure" existence defined 17 is since independent the structure the of the of the stent and includes includes the stent. The entire See imaginary the that of claims. because could spans Medtronic's proposed through a Second, spanning that the area actual which the definition of finds stent. instead "plane" with any Court of as of separate the also it to "an too phrase broad structure rejects rejects Gore's consistent with the definition the Court has adopted for "stent." c. Definition "A substantially cylindrical structure of the plane defined by the stent." 3. Maltiplicity of Openings a. Proposed definitions Gore's definition: an area of the wall "more than one opening; bounded by the wires Medtronic's definition: plain 18 an opening of the a language Court be the having the is it objects"). Medtronic's stent" modifies length capable Thus, The members; material that the encompass the the comports of definition. and still thus Court to spans joining is length read length proposed the the be and elongated (defining or "plane" openings" "structure it surface surface finds "multiplicity of than Oxforddictionarys.com flat Court more stent" and ordinary meaning is b. Discussion The Markman hearing made parties centers argues this ordinary art. on the phrase meaning However, is if that "multiplicity" and that all specification this of clear v. Search 2009) Dictionary large of number Gore language or cylindrical plane or plain meaning this with a a "large {not number F. as "A 2006) of point (defining the argues openings" two). support in 2d large in in See Supp. its described To previous number." 653 skill Medtronic merely to some "large Ed. construed, Medtronic because ordinary embodiments at Inc., (2nd that makes inlet or of the cases the and definition, Girafa.com, 512, the 526 number"); Inc. (D. The multiplicity Del. Oxford as "a variety"). argues and as construction cites multiplicity English be openings which, Media, (defining to the dispute between "multiplicity." person Medtronic "multiplicity" of preferred definitions & a is that need "many" "many" define IAC to term the have not means definition, dictionary definition does the clear outlet of its clear of of the the definition that stent Gore is definitions. 19 supported "openings" wall, stent. "multiplicity" dictionary the is and do further "more than However, by the claim are through the not include the argues one" that and the the supports dictionary definition provided multiplicity In that to includes "a great number." brief and "more cases more." than See have at number"); to argues that Inc. (D. v to mean the or 1999) "two "full with v. May Data or more ordinary and "two any to restrict the meaning v. Raytek Corp., 334 Inc. 2003) ("We indulge their full ordinary construction argument of later on The Court ordinary meaning, person context of of a and this should well customary phrase or 2007 WL a fairly 34 F. large Supp. "multiplicity of Gore meaning" numbers be and improper. 1314, 2d. NSM- signals"). larger would F.3d (defining of that Omega (Fed. Cir. claim that 1323 terms carry meaning."). Gore avoid to believes further "multiplicity" means. "according intrinsic "two Inc.,, Inc., appropriate generally skill as 65). mean customary presumption' about what ordinary the ^heavy usually No. and cited 2007) NSM-packet is Eng'g, as to of acknowledged or more" 8, Sys., multiplicity attempt Docket Gore "two (construing or more" 10, definition Burst.com, more; CellNet Minn. Ex. argument, Cal. "two its "multiplicity" Computer (N.D. mean Itron, signals" synonymous Apple in (PI. oral construed *16-17 1140-41 packet was e.g., multiplicity at one" that 1342504, 1135, Gore responsive its - by to in the the record." 20 assign claim customary art who terms their understanding reads Agilent them Techs., of a in the Inc. v. Affymetrix, Court has Inc., 567 F.3d reviewed the claim prosecution history, reveals special no openings." that assist particular on merge the "two requests large (6th the that the more an in Because F.3d phrase are "among skill 2011) . C. However, Court will art definition Faber, to tools the of term in appears to usually Faber on Mechanics of simply the the more; provide of provided which or of meaning the "two many For Drafting, Robert the 1318. Claim evidence the in parties: both The "multiplicity at advocates claim than the examination meaning the of guidance a Patent and to multiplicity define is apparent for construction this of understood word," extrinsic evidence not appropriate in do this relevant term art, application of the commonly is intrinsic determining of 2009). as more." skilled one of ed. Furthermore, reveals 415 Cir. specification and the the the in Patent number." ambiguity, or of the treatises those Medtronic Mechanics Claim Drafting avoid to {Fed. that for court Phillips, "multiplicity," finds and the 1376 language, meaning terminology invention." Faber and Dictionaries can fairly 1366, the "opening," to allow 21 as to would accepted because meaningfully case even term widely and extrinsic the the evidence understood lay by persons. involve "little meaning of intrinsic add to the straightforward [a] and definition, it claim language with to speak Medtronic "opening" is needed.3 See 1554, 1568 resolution and when claims, not an and finds U.S. that to in obligatory the here; meanings plain and therefore, v. and The what in of no is construction Inc., is scope, patentee the agrees of Ethicon, the Court ordinary meaning technical determination exercise 1314. ("Claim construction explain the at Corp. 1997) disputed use Id. Surgical Cir. necessary for itself. appropriate (Fed. of for 103 a F.3d matter to of clarify covered by infringement. It the is redundancy."). c. Definition Multiplicity: Opening: "two or more" no construction needed; "opening" has a plain and ordinary meaning 4. Covering a. Proposed definitions Gore's definition: plain Medtronic's definition: and ordinary meaning "film of ePTFE material' 3 Both claim 12 and claim 15 require the stent have "a wall" and "a multiplicity '870)(emphasis makes clear of openings added). that the include the inlet or The "openings" outlet through Court are wall." the through the of the stent. 22 the believes (12, claim wall 15: language and do not b. Discussion The dispute "covering" whether it covering limited is and Gore be covering should that patent the col making ePTFE (17; wherein that at construed be if the limiting their examiner should and the that claim is than just rejected a covering as 9-10) . to to claim construed Gore ePTFE, a 16 PTFE"). states Procedure inventors being mean superfluous. Examining of of without at examiner the '870 "method" material. believed 17 {1-11; "covering" 17 that specifically Id. expanded patent material. "covering" according Patent claim 23 to Claim ePTFE of a 1-11 (12-21; the examiner to use porous ordinary differentiation ePTFE. construing of and that presumption relate method Manual a of dependent "a plain Claims broadly that invention of 12-21 argues particular creates ePTFE. covering patent have and Claims (reciting to doctrine render broader any whether specifically Gore its covering made out argues to to on material, material. broadly. to points would Gore according (MPEP), a material 10) to uses grafts said tubular "covering" the However, Gore Second, that be material Id. be construction 8-9). Additionally, ePTFE limited stent the to centers particular not intraluminal limiting any parties according asserts their the defined should supports state to limited should meaning First, is between were then duplicate the of claim 16. See MPEP 706.03 (k) (8th Edition, revised July the specification 2010) (dealing with duplicate claims). Third, Gore presumption the term that claim differentiation "covering." Invention "These of argues which devices Gore describes are and a points various typically to the types flexible of terephthalate or of (hereinafter PTFE). of biological these being typically ('870 patent a col argues broad application claims: 1) 2) examiner of any stent of the material: woven or knitted polytetrafluoroethylene origin umbilical a "any did not ePTFE being of or are also bovine apparatus making a stent on used, arteries." claim patent Abstract. by a Inventor's and apparatus (JA-64). allowed that of "thin method that this in is light to be US Patent the patent specifically and patent covering Khosravi, ePTFE, covering" The claim, a also the covering emphasizes Khosravi 24 a (JA-74); claims In having a which Gore the anticipated 12, history method having graft material." reject both material. rejected art prosecution "covering." graft suitable examiner the describe prior at that they restriction 5,441,515 as of initially Khosravi, made No. a methods without human construction patent and porous of of 1:15-26). Gore Last, supports fixed covering of the construction Background tubes polyethylene Grafts broad supports required because the examiner claims understood which rejection, from argued it art was by oral making a the ePTFE. made highlights and Gore's of ePTFE. argues that Gore's claims as law.4 See 37 A oral distinct of the arguing used it narrower against their ePTFE, this invention instead required with Gore an they exterior out § inventions" 1.142 two invention." the by 131: 25 a an "this the is incorrect or method more the Each Docket No. the to and graft a is has 87). no one the with a apparatus matter independent method a Medtronic and as of Medtronic claims (Transcript "there patent of refers Last, of two covering invention" 2:28). the Description intraluminal col to Abstract Specifically, arguing 7-9, with Detailed is argument. entitled stent inventions. inventions. (Tr. a characterized distinct responded two ("If Medtronic disclosed language patent only that material. describing Gore as is the that disclaimer namely characterization argument clear embodiment ('870 C.F.R. Medtronic made Invention, the when distinct claims patent points of use covering was that ePTFE invention" "two it every with "present a it disclosed, Summary Invention, 120:9). in than differentiate because argues invention the covering as broader differentiation Medtronic Invention, At not asserting claim scope apparatus did argument Medtronic the was Further, different Instead, of ePTFE. 12 (JA-83). During of claim applicants prior covering. not recited the the that of and and 116:20; such thing patentably distinct inventions examiner in reply that will to be claim an Office only specification believes claim is notion a and scope." 1369 to as Phillips, dependent a to independent scope than or that Corp. v. 1315 this of on "the in have not a in claims overcome 26 the Medtronic cannot separate be claims 474 F.3d creates language terms in presence limitation question a sense is gives not doctrine their contrary a is such superfluous. "the beyond each meanings LLC, construe the that different claim by if common claim that particular a method claim provides between However, be that product used claims (noting broaden the case. based should limitation will out differentiation language claim"). "any presumption claims Composites, Court cannot which Fiber the the the "covering" phrases difference a in Claim 2007). adds a of is the applicant to the interpretation. in and application, the differentiation words at that that invention the F.3d differentiation and that claim an record scope the render 415 presumption the in Cir. that and require broader claim indicate (Fed. significant way of Andersen presumption a intrinsic single Medtronic points broader different presumed "). that a will elect . in interpretation different are 1361, a broad doctrine that . supports supported by the The to . have claimed action action restricted can are See of a rise to present in of correct claim scope construction dictated by the Retractable Cir. Techs., an Court ePTFE examples Inc. must covering in overcome disclosed in also that true broadly less than support that the narrower Office giving of 653 F.3d history." 1296, 1305 (Fed. more to the consistent and presumption created parties agree describes the a method "covering" discloses an any examination claims in covering by other claim example ePTFE. (claims than disclosed every of less references the that claims It 12-21) covering 12-21 claims solely their 0.10mm the in as the materials, describe the the patent is appear thick, material the broader "The basis Patent of of reasonable would See be the which claim Invention appears those section ('870 27 col but *in by F.3d are grafts" patent patent upon light one at mentions materials "conventional surgical methods. language, interpreted the Trademark in construction aware than and 415 appears was scope claims Phillips, of older history examiner a scope art.'" it the 1-11. it Background prosecution contained broadest specification skill on the that determines not of statement apparatus invasive whether 0.10mm thick. method Although possible a never claims ordinary only although (PTO) the patent Gore's applications 5 prosecution specification any require However, to or Becton, the Both the specification is v. determine differentiation.5 to description 2011). This to written of 1316 other mentioned that require 1:14-26). (citing (Fed. In Cir. consider during of Acad. 2004)). that the in the present adjustable a also than In 0.010 the Court's not that limit Claim 1 examiner Claim it and the own view, ePTFE is This Infineon and a Cir. described tubular luminal exterior surfaces of openings of stent requiring and a which a seam luminal the is stent to covering a and of graft affixing thin has exterior porous surface intraluminal claim, the the reject scope (Fed. diametrically covering an of Techs. prosecution patented material. to the scope as the (less extending surfaces. added). inventors 12 1055 to tubular, claims thick) its (JA-74). 1. v. to Claim chose understood Inc. the the article (emphasis assertion to method 83) to specification repeatedly multiplicity making the of a tubular of surface about relates a the for 1364 Court permissible 1048, applicants 1359, this the the F.3d exterior a affixed through between (JA-64, having and claimed, exterior 127 F.3d for to consult determine comprising method described 367 appropriate the containing PTFE A Ctr., following way: stent therethrough, stent. to Morris, graft wall expanded is invention intraluminal and order re Tech. "required prosecution, invention The in In During Sci. it PTO was claim." 1997). Of Thus, examination the their re Am. "covering" The recitation Claim 12 makes clear the Aq, claims 318 28 only of based to F.3d history that be 1081, broadly and difference ePTFE on supports and prior the patent different. 1095 (Fed. did between the art the patent and not examiner See Rambus Cir. 2003) (refusing noting to that understood Federal "Each the "bus" claim be under Tanaka, 640 in the a the useful claims to the not broad patent has remaining clarify 1246, at to a the is of narrowly principle, purpose that Claims claim of of the PTO The noting is narrower broader, Cir. that 2011). the that: separate and scope independent differentiation." (Fed. and bus"). "multiplexing this clear "bus" demonstrated meaning of it a claims. 1250-51 issue, use history limited doctrine F.3d patent claim's recently reiterated of from a prosecution was Circuit distinct can construe In re Accordingly, prosecution history supports a broader interpretation of the term "covering."6 At the Markman Circuit recently argument in (Fed. Cir. "body" piece In read by the recited body". that Id. "body" while The Court Inc. was not that be The differentiation others held 653 argued should specifically that because the Federal differentiation Becton, 1304-1305. claim that claim v. it and at of argued similar case broadly doctrine Id. a Techs., structure. supported claims 2011) . be Medtronic rejected Retractable should one-piece hearing F.3d 1296 the term limited a argument was because some recited the to "one- specification 6 Furthermore, the use of the phrase "the present invention" does not automatically language and F.3d must be prosecution 1394, 1398 limit read in the the history." (Fed. Cir. meaning of context Netcraft 2008). 29 the of the Corp. claim terms entire v. and "such specification eBay, Inc., 549 expressly a stated single body, invention from at similar an based never had based that overcome on by a single- distinguished feature," the of the intrinsic claim record. ("[A]lthough ePTFE confining Int'l, 2010) (noting the to patent to is in many ways patent at issue is history and because the distinguish it invention, to their invention even Inc., when "courts a the prior art by different we have 595 not 30 it 1340, only limit the initial asserting (JA-83). 415 from it the at very warned Trading 1352 one that F.3d repeatedly uses not did because claim describes F.3d ^unless an a embodiments."}; patent applicants limit often should embodiment to Phillips, those in arguing against was used broadly. eSpeed, claims the be specification the that that from more not claims v. examiner, argued of the Inc. For example, covering. the prosecution should the embodiments invention Retractable case, the "covering" language in The fact that each example described in the patent enable they used uses against the on covering specific 7 embodiments art present ePTFE clearly to constructed "expressly situation the prior art.7 Cir. body was prior the to applicants Techs. the a specification argument distinguishable 1323 the of had 1305. Although uses "invention" all and differentiation Id. the structure, structure the that (Fed. example broader patentee has claim rejection by differentiate used ePTFE, required an their instead exterior demonstrated words a clear or expressions Additionally, "covering" 17 to mean presence limitation question Claim 16 tubular patent the been not present col is less PTFE." (17; finds limitation and 16 the and in 415 at claim it said at that 1315 a the particular mm thick." Claim 17 reads: with covering its wherein "A is presumption plain said (16; of porous Thus, has absent and *870 method added). "covering" in Independent 0.10 construe that limitation 15 (emphasis Claim (noting claim"). differentiation accordance dependent adds that tubular using construing claim 10:25-26) will that to about Dependent scope restriction.'"). render F.3d claim claim out independent than Id. would according wherein or points presumption the method claim overcome a in 10:23-24) . to Court to "A covering expanded dependent rise reads: according Phillips, a the execution material See of limit correctly ePTFE gives is to of manifest Gore superfluous. "the intention not any ordinary meaning. c. Definition No construction needed; "covering" meaning 31 has a plain and ordinary 5. Affixing a. Proposed Definitions Gore's definition: plain and ordinary meaning Medtronic's definition: heat or with an "attaching through the use of adhesive" b. Discussion The includes to the the dispute "suturing" stent. term claims also do notes The "adhered ('870 that to patent would be explicitly possible should the by plain apply by may surfaces suturing col not the 7:58, improper for disclosed in and a ordinary meaning particular be: 1) by an open the stent 62-63). Court the Thus, to specification can 3) 3, be 2) "affixed tube together." Gore argues exclude from Gore adhered"; or of the Example coverings adhesive"; of of method. "thermally ends covering language particularly the "affixing" affixing that which this the for term any to 60-61, the and specification, methods stent or method the affixing covering the stent a whether proposes limit multiple affixed. the Gore not is as "affixing" describes to here the it embodiments scope of the claim. Medtronic "affixing" of argues a covering that can the be 32 patent achieved contemplates only through heat the or through language the use of a separate in the Summary of adhesive. Medtronic Invention section that points to states: The porous expanded PTFE film may be affixed to the stent with an adhesive. The adhesive may be a thermoplastic adhesive and more preferably a thermoplastic fluorinated fluoropolymer ethylene propylene perfluoroalkoxy (hereinafter second coverings tubular affixed to openings affixed point each in heating the thermally (Id. the at adhere, 2:58-67) 56) the exception examiner as or history et of rejected above added). supports or and PTFE film are multiplicity coverings may the crystalline to they cause may the Medtronic its in discloses of FEP) first melt them be of be to affixed FEP. its patent '870 argues and that that Gore application. (JA- invention Medtronic pending also construction the adhesive") . one the two adequately "affixing" al. the expanded as the Where alternatively such as defined ("Khosravi film (emphasis prosecution specifically them PTFE by an adhesive of such (hereinafter PFA). other through stent wall, the the by of adhesive as claimed notes claims, that Gore when with the responded follows: Khosravi thin, et seamed stents in claimed affixed to do not coverings any differences, the al., to fashion. they cannot invention the teach the be said the surface suggest exterior Because wherein exterior or of to of teach a surfaces the tubular affixing of described or suggest covering stent with is an adhesive. (JA-65, The The 66) . Court prosecution does not history find Medtronic's passage 33 just argument referenced persuasive. above relates only to pending according with an that to Gore was to do use not passage be the only of particular "courts its Example be passage an of manifest the 'unless the specification or lists used for "affixing": 1) adhering the covering the it be in the defines construed meaning. First, "affixing" should F.3d at be scope has three adhering surfaces by in the any construed {noting [of the demonstrated using possible to 1352 language patentee thermally 34 here "affixing" restriction.'"). stent art heat. claim execution to thermal broader the an inconsistent limits 595 the of issue cites is fact prior issue which generally limit This limit Int'l, affixed use at at method The the Medtronic should not limit in not ordinary Techs. embodiments of and thus not to use of is the claims adhesive. does Trading intention 3 and were "affixing" itself the construction plain should the expressions 2) finds See clear can proposed method broadly. to using that missing and "A 10:1-2). stating "adhesive" stated: covering col since through with by element the which tubular patent rejection Further, language claim] '870 13) irrelevant word Court accordance that this the an adhesive or through The claim claim wherein largely Medtronic's use 39 {now important cited. affixing a an 40 (JA-33; overcame appears to claim adhesive." adhesive with claim words or Second, methods that the covering; an adhesive; or 3) ends affixing of the the tube covering together. 63). Medtronic's limits the Summary definition to embodiments there Co. is v. a normally v. 2007) 514 not Vonage Corp. claim the third option and mentioned disclosed (Fed. a Corp., 503 in F.3d way the L.P., 327 1305 1364, ("We excludes Servs. {Fed. that specification); F.3d Oatey Verizon interpretation the 2008) that a unless See Cir. 1295, the in improper specification. in in Limiting specification."); claim Mfg., 62- usually terms open 60-61, patent.8 is the 7:58, methods 1276-1277 examples Biocrest col methods the proposed disclosed v. in 1271, in Holdings (rejecting exclude the suturing the the suggests interpret disclosed two of of F.3d by patent the disclaimer" Corp., do to some stent eliminates section Medtronic "clear embodiments Corp. only as IPS only Invention the {'870 definition definition of to Cir. would Invitrogen 1369 (Fed. Cir. 8 Gore points out that "suturing" is the method Medtronic uses to make its accused "suturing" claims the at issue. "870 exterior an patent applicable and to the affixing affixed to example. . to be broad affixing ones a which begins covering are not that arguing not because an intraluminal to "suturing covering instant enough by does reference the (Id. 3 to interior stent ." responds Example explains only paragraph a . in Medtronic the methods Medtronic found relate covering, exterior However, devices. reference claims. in by Example stating surface at to to together by 3 encompass The exterior specifically embodiment. 35 the claims open with ends" 3 is of an of not col 7:61-62). discusses potential "Stent on Court many the the to graft Example patent which that: variations 7:54-55). the ('870 the in that apply coverings this finds method. this potential surface discussed may of a the For language methods in be stent, of even preferred 2003) (finding erroneously the the excluded specification, disavowal of that claim a embodiment language is disclaimed" "rarely, the "among the art the of of the definitions thing (to, 11). the affix on, upon) or "to an reveals that the by skilled Because claim no that limit a assist there attach and court in fasten or meaning of the art, is construction skill make for apparent this 36 extrinsic "affixing," term even would to are as the The firm "to (Merriam-Webster, term in 1318. (Oxforddictionary.com); relevant term determining at of the treatises F.3d anyway" that for 415 in or the Phillips, another" heat finds of fix, "clearly the those "to no definition. meaning the is language, and dictionaries such preferred thermal the in (noting Gore claim history, no 1583 to include: the at Here, than example showed terminology examination in so special can an indicates the above, invention." Thus, one prosecution tools F.3d other not in excludes that method reveals 90 correct"). reviewed particular of physically" any discussed many meaning ever, construction history which has and As by described Vitronics, if claim prosecution the Court will evidence "affixing." the specification Court specification embodiment scope); affixing The court's interpretation and thus intrinsic an where claim" in adhesives district a attach PI. Ex. evidence understood lay involve persons. "little more than the application of commonly understood word," extrinsic evidence not the is appropriate in do this language to speak declines to construe instead accords for the and to Id. limitation term its plain meaning the of intrinsic add to the allow itself. accepted because meaningfully case any widely straightforward at the 1314. into the and definition, Thus, term the [a] it claim Court "affixing" and and ordinary meaning. c. Definition No construction needed; "affixing" has a plain and ordinary meaning 6. "Seam extending from the exterior surface luminal surface of the a. Proposed Gore's to the Definitions definition: Medtronic's the through tubular covering" Plain definition: exterior and and ordinary meaning "seam created interior surfaces by an of the disagree as overlap of tubular covering" b. Discussion For edges of extending this the phrase, the covering must from the parties "overlap" exterior in surface 37 order through to to whether create to the a the "seam luminal surface." *870 Both patent Gore phrase the argues to to the that of only to ('870 Medtronic in only patent "seam" and refers seam. at notes that not can to claim in stent a seam the to again found in also states are limit this Gore which grafts intended of definition language. constructions "the intended the described to scope by of these 4:44-47). the provides be phrase created illustration is by "an notes edges" the that in and its argues Medtronic ;7:20). in ambiguous the overlap Medtronic and "overlapped 6:48 is clarity. surfaces." 5:38,54; every shown meaning of making specification specification specifically (Id. are col interior the the that this in figures ordinary method broad the asserts only embodiments into and construction exterior the Medtronic's intraluminal proposed way of and believes particular language invention all plain Gore a examples examples." the examples illustrative that an overlap. insert the following agree apply. illustrated points be depict should attempts sides points every Additionally, clearly to the the embodiment connection patent of with the Medtronic depicts an overlap. The require claim Court agrees construction. limitations that with "It are Gore is not and finds important part 38 of that the not to the claim. term does not import into a For example, a particular not be the embodiment." 870, the read embodiment 875 the (Fed. claims, mandates a a to claim when Cir. the 2004). claim v. There extending adopt be such or from is broader Enters., in the prosecution exterior an description may language nothing the the written DirecTV is created by a the the specification, surface" in Corp. Superguide "seam luminal declines into appearing 358 F.3d language history surface overlap. than of that through Thus, the to Court limitation. c. Definition No construction surface through needed; to the "seam extending luminal surface" from the has a exterior plain and ordinary meaning 7. "Has been diametrically adjusted to a. Proposed Gore's Definitions definition: plain Medtronic's definition: from the the enlarged diameter" and ordinary meaning "has collapsed diameter been to diametrically the adjusted enlarged diameter" b. Discussion Gore ordinary argues meaning that should this phrase apply. is Gore 39 clear states and that its plain Medtronic and uses the exact then words of improperly diameter." At the an 15 form have when first Medtronic any selection diameter of and a "to (emphasis patent *870 example that 3, and example expandable 3.4mm 10) to requires diameter relate states a to construction . . was enlarged (emphasis has its that: Claim A ('870 points expanded from is not in its require of a collapsed 10:10-15) the claims of embodied in stent." of the col is They the note balloon- collapsed diameter 8.0mm." it other eliminates requires that stent diameter. 40 does which its adjust out the stent from balloon-adjustable leaves plain patent out III, diameter to that 15 adjusted Palmez adjusted catheter potentially "A less- construction "balloon-expandable outside added). balloon a been Species but diameter inserted argues the that form. diameter." to explained be and collapsed collapsed can applied that also a that proposed clear Medtronic type. an its has Gore is the parties stent collapsed which describe 3 the indicates a makes enlarged added). the in which construction "from the vessel. that stent the so covering argues ambiguity is proposed phrase hearing simply been its stent blood the in the a diameter Claim expanded it having a of in Markman through language that of enlarged invasively claim adds the importance and the (Id. stent from However, methods at of 7:6- typically its collapsed Medtronic's mentioned in the Examples expanding" "expand and at their to a in force such normally way do at 1305 restricts Markman hearing Medtronic's adjusted diameter. claim enlarged When examples it from any at speaks of diameter" asked construction responded a Docket the at it it says Markman exclude was not Court typically to construe at in way terms a that that will No. than 87) . a hearing all plain "diametrically nothing that of about how whether that their to expanding stents and conjectured that it "might someone to make a self-expanding stent in this making stents that collapsed language to of the adjustment their stents, the whether adjusted self-expanding purpose F.3d would of completely The ("We 503 methods exclude the During regardless all in excludes Verizon, specification). other 41 in claims 1276-1277 interpretation excludes 173). a diameter." F.3d the being are from disclosed language stent smaller 514 clear but would that in diameter 169, a examples claim language the released specification."); became stents, (Tr. the stents stents this Oatey, proposed proposed self-expanding 9 in (rejecting for claim "self- to as constrained. exclude e.g., disclosed disclosed the to interpret exclude are improper See, them to being such being self-expanding as not embodiments after a Self-expanding 2:46-51). diameter form prior specification. Invention which generally a at of Thus, 2:51-54). is Summary (Id. larger expanded It the stent.9 constraining (Id. in proposed Medtronic exclude self- be possible for way." (JA-170, took place ('870 or what col patent construction ordinary the should be important not part the appearing in claim when Renishaw (Fed. in a the claim For that a ("If in patentee limitation 358 description is meant by is at than rely a not be the 158 on particular 'extraneous' and finds that plain and ("It is are not a embodiment read into a embodiment."); F.3d a the 875 that and in its particular per Azioni, not and with F.3d may broader need limitation limitations a from. Medtronic's disclosed accordance claim Societa' we a construction example, language Marposs the the adjusted because import Superquide, into was embodiments rejects written 1998) what claim, import the PLC v. improperly See it Thus, construed claim. the Cir. interpret to diameter specific Court meaning. of to exclude specification, phrase 10:10-15). appears potentially this specific 1243, 1249 limitation term or cannot to phrase constrain claim."). c. Definition No construction needed; "diametrically adjusted enlarged diameter" has a plain and ordinary meaning to the 8. "terminal surface" a. Proposed Gore's Definitions definition: plain Medtronic's definition: and ordinary meaning "interior surface" b. Discussion At agree the the the term only confusing and finder claim should that and be least exterior one multiplicity (emphasis during an to e.g., it is in '870 luminal Additionally, argument that the 43 would aid the and The referenced and wall Gore to of the stent meaning claims ("selecting and in notes "exterior stent, wall, agreed ordinary the 9:33-36) a surface" Court in contrast adjustable as specification the col to potentially "luminal direct the be Court such that patent through may and Medtronic art Court of is surface with surface." "interior diametrically openings added). oral a this the of surface" finds surface" agrees parties surface" for terms by both "interior Court "luminal mean that necessary to Court (12; tubular, of is examination the clear means construction "luminal surface, it made The and specification, See surface" term. After construed surface." at that time was references language, every the the "lumen" fact. of it whether various "intraluminal," the is construe the hearing "luminal dispute formally that Markman having having . . briefing of an . a ") and "luminal surface" to one Brief. 26, Court will surface." of skill Docket No. construe (PI. Brief. in 67; the Tr. art 175, "luminal 26, is "interior Docket No. surface" Docket No. 67; surface." 87). to Thus, mean Tr. (PI. 175, this "interior Docket No. 87) . c. Definition "Interior IV. surface" CONCLUSION For the reasons Opinion and Order terms the '870 in The Order to It Clerk is forth the above, the construction of Court the disputed REQUESTED of record to for send the a copy of this claim Opinion and SO ORDERED. Mark UNITED December this parties. /s Norfolk, issues patent. is counsel as set Virginia 13 2011 44 S. STATES fflU&r Davis DISTRICT JUDGE
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