Cardiofocus, Inc. v. Candela Corporation et al

Filing 197

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER. (Moore, Kellyann)

United States District Court

District of Massachusetts

)

CARDIOFOCUS, INC.,
plaintiff,

)
)
)
)
)
)

v.
CARDIOGENESIS CORPORATION,
Defendant.

Civil No.
08-10285-NMG

)

---------------- )
MEMORANDUM

&:

ORDER

GORTON, J.

This is a patent infringement action involving laser
catheter systems.

The Court held a Markman hearing on October

21, 2011, at which counsel offered arguments in support of their
proposed claim constructions of disputed terms.

The following is

the Court's ruling with respect to those terms.
I.

Patent Subject Matter

Plaintiff CardioFocus, Inc.

("CardioFocus") alleges that

defendant Cardiogenesis Corporation ("Cardiogenesis")
manufactured, used, imported, sold and offered for sale lasers
that infringed at least one of its two patents-at-issue: u.s.
Patent Nos. 5,843,073 ("the '073 patent") and 6,547,780 ("the
'780 patent").

The '780 and '073 patents describe a system for

transmitting laser energy to a surgical site via an optical fiber
to repair or remove biological tissue.

-1­

The invention is based,

in part, on the discoveries that 1) the wavelengths of infrared
radiation emitted by so-called "rare earth" lasers, or lasers
with a wavelength between 1.4 and 2.2 micrometers, are strongly
absorbed in biological tissue and 2) low hydroxyl ion content
silica fibers have the flexibility and high conductivity to
enable the transmission of such wavelengths to remote surgical
sites to facilitate repair or removal of biological tissue.

II.

Claim Construction
A.

Principles of Claim Construction

In analyzing a patent infringement action, a Court must
1) determine the meaning and scope of the patent claims asserted
to be infringed and 2) compare the properly construed claims to
the infringing device. Markman v. Westview Instruments, Inc., 52
F.3d 967, 976 (Fed. Cir. 1995)
(1996).

(en bane), aff'd, 517 U.S. 370

The first step, known as claim construction, is an issue

of law for the court to decide. Id. at 979.

The second step is

determined by the finder of fact. Id.
The Court's responsibility is to determine the meaning of
claim terms as they would be understood by persons of ordinary
skill in the relevant art. Bell Atl. Network Servs., Inc. v.
Covad Commc'ns Grp., Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001).
The patent specification is
the single best guide to the meaning of a disputed term
[because it may reveal] a special definition given to a
claim term that differs from the meaning it would
otherwise possess [or contain] an intentional disclaimer,
or disavowal, of claim scope by the inventor.
-2­

Phillips v. AWK Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005)
banc).

(en

The Court should also consult the prosecution history to

see how the inventor and PTO understood the patent and to ensure
the patentee does not argue in favor of an interpretation it has
disclaimed. Id. at 1317.
In the rare event that analysis of the intrinsic evidence
does not resolve an ambiguity in a disputed claim term, the Court
may turn to extrinsic evidence, such as inventor and expert
testimony, treatises and technical writings. Id. at 1314.
Although extrinsic evidence may be helpful in construing claims,
the intrinsic evidence is afforded the greatest weight in
determining what a person of ordinary skill would have understood
a claim to mean. Id. at 1324.
B.

Disputed terms

CardioFocus alleges infringement of two claims of the '073
patent (Claims 2 and 7) and one claim of the '780 patent (Claim
2).

Because the '780 Patent is a continuation-in-part of the

'073 Patent, similar terms, used consistently, will be construed
uniformly throughout both patents. See Epcon Gas Sys.c Inc. v.
Baur Compressors, Inc., 279 F.3d 1022, 1030-31 (Fed. Cir. 2002)
(~[T]he

same term or phrase should be interpreted consistently

[when used as such] where it appears in claims of common
ancestry.").

Likewise, the same term or phrase, if used

consistently in one or more claims, will be given the same

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meaning throughout. See id.

For purposes of context, the

disputed claims are set forth fully below with the disputed terms
highlighted the first time they appear:

u.s.

Patent No. 6,547,780 (Claim 2)

The system of claim 1 [A surgical system comprising: a
hollow elongate surgical instrument, having at least one
lumen for receiving an optical fiber,
and being
maneuverable to provide a conduit for transmission of
laser energy to a surgical site; and a flexible, elongate
fiber for conducting laser energy from a proximal end of
said fiber to a surgical site at a distal end of said
fiber, the proximal end for receiving laser energy, and
said fiber being a silica fiber including means for
reducing absorption of laser energy at a wavelength of
about 1.4
2.2 micrometers], wherein said fiber is
suitable for coupling with and conducting energy of a
Holmium-doped yttrium-Aluminum-Garnet laser.

u.s.

Patent No. 5,843,073 (Claim 2)

The system of claim 1 [A system for transmitting laser
energy via a [sicl optical fiber to a surgical site
comprising: a laser energy source operating at a
wavelength in a range of about 1.4 - 2.2 micrometers; and
a flexible elongate optical fiber for conducting laser
energy from a proximal end of said fiber to a surgical
site at a distal end of said fiber, the proximal end
being coupled to the output of said laser energy source,
and said fiber being a silica fiber having a low hydroxyl
ion content to reduce absorption of said laser energy
during transmission through said fiber], wherein said
laser source comprises a Holmium-doped yttrium-Aluminum­
Garnet laser.

u.s.

Patent No. 5,843,073 (Claim 7)

The system of claim 1 [A system for transmitting laser
energy via a [sicl optical fiber to a surgical site
comprising: a laser energy source operating at a
wavelength in a range of about 1.4 - 2.2 micrometers; and
a flexible elongate optical fiber for conducting laser
energy from a proximal end of said fiber to a surgical
site at a distal end of said fiber, the proximal end
-4­

being coupled to the output of said laser energy source,
and said fiber being a silica fiber having a low hydroxyl
ion content to reduce absorption of said laser energy
during transmission through said fiber], wherein said
laser source operates to deliver energy at a wavelength
in a range of about 2.06 - 2.1 micrometers.
C.

Claim Construction
1.

"a hollow elongate surgical instrument having at
least one lumen" ('780 Patent, Claim 2)

Cardiogenesis proposes that the claim terms be construed to
mean:
A hollow, tubular and flexible instrument that can be
selectively positioned within the body and can deploy an
optical
fiber
therethrough for
use
in surgical
procedures.
It reasons syllogistically that because claim 12 reads, "The
system of claim 1 wherein the hollow elongate instrument is a
catheter," and catheters are tubular and flexible, that the
phrase "a hollow elongate surgical instrument having at least one
lumen" must be construed to include the terms "tubular" and
"flexible."
Such a construction would, however, violate the doctrine of
claim differentiation by rendering dependent claims superfluous.
Clearstream Wastewater Sys., Inc. v. Hydro-Action, Inc., 206 F.3d
1440, 1446-47 (Fed. Cir. 2000)

(explaining that the doctrine

"prevents the narrowing of broad claims by reading into them the
limitations of narrower claims").

If the Court were to read the

characteristics of a catheter into the terms of claim 2,
reference to a catheter later in claim 12 would be redundant.
-5­

Neither the claim terms nor anything else in the intrinsic record
demonstrates that the described surgical instrument is
necessarily "tubular" or "flexible."

While some of the figures

in the specification possess those qualities, it would be
improper to import a limitation from such embodiments into the
claims of the patent. See Phillips, 415 F.3d at 1323.

Notably,

when Dr. Sinofsky intended a claim element to recite further
limitations such as "flexible," he did so expressly. See, e.g.,
'780 patent, col. 9:7 (describing "a flexible, elongated fiber") .
The claim terms do not implicate any special knowledge
possessed by a person in the art and, thus, should be given their
ordinary meanings.

The terms "hollow" and "surgical instrument"

are not sufficiently ambiguous or uncommon to warrant
construction.

As the Federal Circuit explained:

The Markman decisions do not hold that the trial judge
must repeat or restate every claim term.
Claim
construction is a matter of resolution of disputed
meanings and technical scope, to clarify and when
necessary to explain what the patentee covered by the
claims, for use in the determination of infringement. It
is not an obligatory exercise in redundancy.
U.S. Surgical Corp., v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed.
Cir. 1997).

In contrast, "elongate" and "lumen" are not used in

common parlance and will be construed in accordance with their
ordinary meanings of "long in proportion to width" and "hole,"
respectively. See Phillips, 415 F.3d at 1314 (explaining that in
cases where an unambiguous claim term has no special meaning in

-6­

the field of art but its ordinary meaning may not be evident to a
juror, the Court may consult a general purpose dictionary in
construing it) .
In sum, the Court will construe "a hollow elongate surgical
instrument having at least one lumen" to mean: "a hollow surgical
instrument, long in proportion to width, having at least one hole."
2.

"a flexible, elongate fiber" ('780 Patent, Claim
2), and "a flexible, elongate optical fiber" ('073
Patent, Claim 7)

Cardiogenesis argues that the terms should be defined as:
A single, continuous, and flexible segment of silica
fiber positioned to extend from the laser source to the
surgical site.
CardioFocus counters that the terms should be given their
ordinary meanings.

Both parties agree that "fiber" should be

construed to mean "silica fiber," consistent with the
specification.

The dispute is over whether the patent

necessarily requires a "single" fiber and whether it must run
"continuous

from the laser source to the surgical site."
a.

Single

A customary principle of patent construction and the plain
language of the specification counsel against construing the
claim terms to include the word "single."

In an open-ended claim

containing the transitional phrase "comprising," such as the one
here, the words "single", "a" or "an" should be construed to mean
"one or more." Free Motion Fitness, Inc. v. Cybex Int'l, Inc.,
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423 F.3d 1343, 1350 (Fed. Cir. 2005).

That rule of patent

construction is overcome only "when the claim is specific as to
the number of elements H or "when the patentee evinces a clear
intent to limit the article,H id. at 1350, neither of which is
the case here.
On the contrary, the patent language plainly contemplates
the use of multiple fibers.

The abstracts for both patents

state: "The catheter may be comprised of a single optical fiber
or a plurality of optical fibers. H That language is echoed
throughout the specifications,

~,

'780 patent, col. 7:57-58

("the four optical fibers which pass through the catheter H) i '073
patent, col. 8:42 ("the diverging beam from each of the fibers H),
and reflected by the embodiments described in Figures 7-11 of the
'780 patent, each of which depicts a four-fiber catheter.

There

is no indication that the patentee intended to limit the patents
to a "single" fiber and the Court declines to read such a
limitation into the patent.
b.

Continuous

Cardiogenesis points to the surrounding claim terms and the
prosecution history to support its argument that the phrase
should be construed to include the word "continuous."

First,

defendant notes that the claim terms "a flexible, elongate
optical fiber" were not written in isolation but rather
constitute the start of a phrase that continues,
-8­

for conducting laser energy from a proximal end of said
fiber to a surgical site at a distal end of said fiber,
the proximal end being coupled to the output of said
laser energy source . .
Thus, Cardiogenesis asserts, even if the patent contemplates the
use of a plurality of fibers, those fibers must be continuous if
they conduct laser energy from their proximal to their distal
ends.
Second, Cardiogenesis contends that the patentee relied on
the invention's continuous fiber optic cable to distinguish
claims 2 and 7 of the '073 patent from the Goldman prior art
reference, which described a laser generator "far-removed from
the surgical site."

In light of such reliance, it argues, the

Court should narrowly construe the otherwise broad claim
language, citing for that proposition Seachange Int'l, Inc. v. CCor. Inc., 413 F.3d 1361, 1373 (Fed. Cir. 2005)

("[W]here an

applicant argues that a claim possesses a feature that the prior
art does not possess in order to overcome a prior art rejection,
the argument may serve to narrow the scope of the otherwise broad
claim language.") .
Neither argument is persuasive.

The reference to the

proximal and distal ends of the fiber is understood by the Court
to convey that the system was designed to transmit laser energy
from the laser source all the way to the surgical site, not that
it necessarily must use a continuous fiber to do so.

The

distinction made during the prosecution history is illustrative:
-9­

the fiber of the Goldman reference conducts laser energy to the
movable mounting of a microscope far removed from the surgical
site, at which point the energy is then transmitted through
mirrors and the air to the surgical site.

In contrast, the

invention described in the '073 patent conducts laser energy from
the laser source all the way to the surgical site.

The

distinction relates to where the fiber ends, not how the fiber is
constructed.

Both the plain language of the patent and the

prosecution history are consistent with the use of several fiber
segments or the combination of fibers and air to transmit the
laser energy.
The phrase "a flexible, elongate fiber" is not a complicated
description that has any specialized meaning within the relevant
art, nor is it constrained by the specification or the
prosecution history.

Its meaning is well within the

understanding of a lay juror and, therefore, the Court will
construe it in accordance with its ordinary meaning to denote: "a
flexible silica fiber, long in proportion to width."
3.

"means for reducing the absorption of laser energy
at a wavelength of about 1.4 - 2.2 micrometers"
('780 Patent, Claim 2), and "low hydroxyl ion
content" ('073 Patent, Claims 2 & 7)

Cardiogenesis argues that these highlighted phrases do not
comport with 35 U.S.C.
be ruled indefinite.

§

112 and, as a result, the claims should

Given the similar arguments made with

respect to each claim, the Court will address them together.
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a.

Section 112, ~ 2 analysis

A claim is indefinite under 35 U.S.C.

§

112 if

a skilled artisan could not discern the boundaries of the
claim based on the claim language, the specification, and
the prosecution history, as well as her knowledge of the
relevant art area.
Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1249­
50 (Fed. Cir. 2008).

Claims are not indefinite "merely because

they present a difficult task of claim construction." Id. at
1249.

Rather, a claim must be "insolubly ambiguous" to be ruled

indefinite, id., and the party bringing the challenge bears the
heavy burden of showing the insoluble ambiguity by clear and
convincing evidence, id. at 1249.

Importantly, claim

construction "need not always purge every shred of ambiguity" and
the resolution of some line-drawing problems may be left to the
trier of fact. Acumed LLC v. Stryker Corp., 483 F.3d 800, 806
(Fed. Cir. 2007).
Cardiogenesis argues that the above phrases are indefinite
because the specification does not provide 1) a specific
definition of "low" (i.e., an amount in parts-per million of the
hydroxyl ion content of 822W), 2) an explanation of the process
by which the optical fiber must be "specially purified" to reduce
the hydroxyl ion content or 3) a description of the 822W fiber's
components.

It asserts, therefore, that a person of ordinary

skill in the art could not, from the patent, determine what
constitutes a "low" hydroxyl ion content or identify the
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corresponding structure in the specification that can provide the
"means for reducing the absorption of laser energy."
The Court disagrees.

A patent claim with an undefined

relative term such as "low" is not indefinite unless the
specification provides no standard against which to measure it.
Seattle Box Co., Inc. v. Indus. Crating & Packing, Inc., 731 F.2d
818, 826 (Fed. Cir. 1984); see also NexMed Holdings, Inc. v. Beta
Tech., Inc., No. 2:06-CV-1014 TC, 2008 WL 2783522, at *4 (D. Utah
July, 16, 2008)

(finding "low DC voltage" not indefinite and

construing it to mean "a voltage that results in a constant
unidirectional flow not to exceed 30 milliamps"); Input/Output,
Inc. v. Sercel, Inc., No. 5:06CV236, 2007 WL 6196070, at *30
(E.D. Tex. Dec. 19, 2007)

(finding "low mechanical spring

constant" not indefinite and construing it to mean "a mechanical
spring constant that is not a high mechanical spring constant and
that is sUfficiently low so that sensitivity to low frequency
forces is obtained").

Here, the specification provides an

express standard against which to measure "low": the hydroxyl ion
content must be low enough to "prevent[] the laser energy which
is transmitted down the fiber from being highly absorbed in the
fiber material," '073 patent, col 5:63-6:1; '780 patent, col. 6:3­
7, so the claim is not indefinite.
A person of ordinary skill in the art could employ that

standard to discern the boundaries of the claim.

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Dr. Sinofsky

testified that low hydroxyl ion content means, in the art, "low
enough to be able to transmit 2-micron laser radiation 2 to 3
meters," and that a quick test can be performed to determine
whether a fiber meets that criterion.

Likewise, Michael Dumont,

Dr. Sinofsky's former laboratory assistant, testified:
it was relatively straightforward to indirectly determine
whether the OH content was low enough by measuring the
mid-infrared transmission through the fiber.
A term is not indefinite if "a person of ordinary skill in the
art could determine the specific amount without undue
experimentation," Geneva Pharm., Inc. v. GlaxoSmithKline PLC, 349
F.3d 1373, 1383-84 (Fed. Cir. 2003), so, for that additional
reason, the phrases at issue are not indefinite.
The manner in which Dr. Sinofsky obtained the 822W fiber
from Spectran underscores that point.

After testing a number of

fibers and finding none with characteristics suitable for
transmitting laser energy directly to a surgical site, Dr.
Sinofsky asked Dr. Peter Schultz at Spectran for an "ultralow OH
fiber."

Dr. Schultz did not ask Dr. Sinofsky for the exact

percentage in parts-per million or throw up his hands at the
blatant ambiguity of the request.

He understood what Dr.

Sinofsky meant and placed an order for 822W fiber.

That, as the

Federal Circuit has made clear, is all the statute requires.

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b.

Section 112, ~ 6 analysis

Cardiogenesis further contends that "means for reducing the
absorption of laser energy at a wavelength of about 1.4 - 2.2
micrometers" is indefinite for failing to disclose adequately the
structure used to perform the recited function.
Claims written in means-pIus-function form must comply with
35 U.S.C.

§

112, ~ 6:

An element in a claim for a combination may be expressed

as a means or step for performing a specified function
without the recital of structure, material, or acts in
support thereof, and such claim shall be construed to
cover the corresponding structure, material, or acts
described in the specification and equivalents thereof.
In a

§

112,

~

6 analysis, the Court must first identify the

function of the claimed limitation and then identify the
structure disclosed in the specification that performs the
claimed function. Telemac Cellular Corp. v. Topp Telecom., Inc.,
247 F.3d 1316, 1324 (Fed. Cir. 2001).

If the specification does

not contain an "adequate disclosure" of the structure, the patent
violates

§

112, ~ 6 and the claim should be found indefinite. In

re Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994).
The function expressed in the '780 Patent is "means for
reducing the absorption of laser energy at a wavelength of about
1.4-2.2 micrometers."

CardioFocus submits that the phrase should

be construed to cover the following corresponding structure:
specially treated fiber that has been purified to reduce
the concentration of hydroxyl ions including fused silica
optical fiber part no. 822W manufactured by Spectran
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Corporation and equivalents thereof.
That structure is adequately described in the specification,
CardioFocus explains, as Holmium, Erbium or Thulium lasers used
with a fiber with a low enough hydroxyl ion concentration to
transmit laser energy in the 1.4-2.2 micrometer wavelength range
through an optical fiber to a surgical site, while upreventing
the laser energy . . . from being highly absorbed in the fiber
material." '780 Patent, col. 6:5-7.

The specification goes on to

provide an example of the kind of fiber covered:
A fiber which is suitable for use with the illustrative
embodiment is a fused-silica fiber part no. 822W
manufactured by the Spectran Corporation located in
Sturbridge, Mass.
'780 Patent, col. 6:7-10.
Cardiogenesis responds that plaintiff's construction fails
to meet the requirements of

§

112,

~

6 because the specification

does not disclose the process for making uspecially purified"
optical fibers or particularly describe their characteristics.
It is not enough, Cardiogenesis asserts, to point to a specific
product instead of describing its characteristics because the
product may cease to be commercially available.
Cardiogenesis fails to grasp, however, that the patents-in­
suit describe a more effective way to transmit laser energy to a
surgical site using existing fiber optic technology.

They do not

purport to invent a new kind of fiber and thus need not describe
the process for making it.

CardioFocus must show only that an
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ordinary person skilled in the art would be able to identify a
fiber with low hydroxyl content, not that the person would be
able to reproduce that fiber. See Tech. Licensing Corp. v.
Videotek, Inc., 545 F.3d 1316, 1338-39 (Fed. Cir. 2008)

(holding

that use of term "black box" did not render the claim indefinite
because that term was known in the field to represent video
standard detector circuitry) i Intel Corp. v. VIA Techs., Inc.,
319 F.3d 1357, 1366 (Fed. Cir. 2003)

(holding that generically

defining the structure as "core logic," without explaining its
circuitry or how it is modified, did not render the claim
indefinite because the patented invention could function with any
core logic) i S3 Inc. v. NVIDIA Corp., 259 F.3d 1364, 1370-71
(Fed. Cir. 2001)

(holding that a claim was not indefinite for

using the term "selector" because it was a standard component and
its structure was well known in the art) .
CardioFocus points to a specific product that can be used to
reproduce its invention, the 822W fiber manufactured by Spectran,
so a person skilled in the art would have no trouble identifying
the structure.

Even if the product were no longer commercially

available, a person of ordinary skill in the art could easily
order another brand of ultralow OH fiber or test various fibers
to identify one that fits the criteria.
In sum, the claims satisfy the requirements of 35 U.S.C.
§

112 and are not indefinite.

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5.

"coupling withn ('073 Patent, Claim 7) and
"coupled ton ('780 Patent, Claim 2)

Cardiogenesis argues that the terms "coupling with" and
"coupled to" necessarily require a physical connection and, with
that in mind, the Court should define those terms as "the
physical connection between the proximal end of the elongate
fiber with the output of the energy source."
The Federal Circuit has held that the unmodified term
"coupled" does not automatically imply a physical connection and
has counseled courts against reading such a limitation into the
term absent contrary evidence in the intrinsic record. See
Johnson Worldwide Assoc., Inc. v. Zebco Corp., 175 F.3d 985, 992
(Fed. Cir. 1999).

Finding no such contrary evidence here, this

Court will not impose a physical connection limitation on the
clear meaning of "coupled" or "coupling."
6.

"A system for transmitting laser energy via a
[sicl optical fiber to a surgical site" ('073
Patent, Claims 2 & 7)

Cardiogenesis defines the phrase as:
A surgical system that is designed for biological
tissue removal and/or repair in a living body that
utilizes a continuous segment of silica fiber that
extends from the source of laser energy to a site
within the body where the biological tissue is
removed and/or repaired.
CardioFocus counters that the phrase does not need to be
construed at all because it is the preamble to Claim 1 of the
'073 patent and not a limitation.
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Cardiogenesis replies that the

preamble requires construction by the Court in this case because
the preamble language "via [sic] a optical fiber" was added to
distinguish prior art references which taught laser energy
transmission through air.
A preamble should not be construed where it does not state
any new limitation that is not in the body of the claim but
"merely states, for example, the purpose or intended use of the
invention." Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d
1298, 1305 (Fed. Cir. 1999).

It need only be construed when,

read in the context of the entire claim, it recites information
that is "necessary to give life, meaning, or vitality" to the
claim, such as when 1) it is essential to understanding the
limitations or terms in the claim body, 2) it recites additional
structure or steps underscored as important by the specification
or 3) a party relied on it during the prosecution to distinguish
the claimed invention from prior art. Catalina Mktg. Int'l, Inc.
v. Coolsavings.com, Inc., 289 F.3d 801, 808-09 (Fed. Cir. 2002).
Putting aside whether the preamble language "via a [sic]
optical fiber" was intended to "distinguish," as Cardiogenesis
asserts, or "merely clarify," as CardioFocus maintains, it should
not be read as a limitation because it does not add any term that
is not present in the body of the claim.

In fact, immediately

after the preamble, Claim 1 describes the invention as "a
flexible elongate optical fiber for conducting laser energy from
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a proximal end of said fiber to a surgical site," a mirror image
of the preamble terms.

Because the preamble language is not

"necessary to give life, meaning, or vitality" to the claim, it
will not be construed.
ORDER

For the reasons set forth in the foregoing Memorandum, the
disputed claim terms are construed as follows:
1. a hollow elongate surgical instrument having at least one
lumen ('780 Patent, Claim 2) means "a hollow surgical
instrument, long in proportion to width, having at least one
hole";
2. a flexible, elongate fiber ('780 Patent, Claim 2) and a
flexible, elongate optical fiber ('073 Patent, Claim 7) mean
"a flexible silica fiber, long in proportion to width";

3. means for reducing the absorption of laser energy at a
wavelength of about 1.4 - 2.2 micrometers ('780 Patent, Claim
2) is construed to cover the claimed function. The structure
that performs that function is set forth in the patent
specification: "fiber that has been purified to reduce the
concentration of hydroxyl ions including fused silica optical
fiber part no. 822W manufactured by Spectran Corporation";
4. low hydroxyl ion content ('073 Patent, Claims 2 & 7)
means "hydroxyl ion content low enough to prevent laser
energy from being highly absorbed in silica fiber";
5. coupling with ('073 Patent, Claim 7) and coupled to ('780
Patent, Claim 2) do not require construction;
6. A system for transmitting laser energy via a [sicl
optical fiber to a surgical site ('073 Patent, Claims 2 & 7)
does not require construction.
So ordered.

Nathaniel M. Gorton
United States District Judge
Dated November

3 ,

2011
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