W.H. Wall Family Holdings, LLLP v. CeloNova Biosciences, Inc.
Filing
62
MEMORANDUM OPINION AND ORDER Regarding Claims Construction, ( Scheduling Conference set for 10/17/2019 at 02:00 PM before Judge Lee Yeakel,). Signed by Judge Lee Yeakel. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
W. H. WALL FAMILY HOLDINGS,
LLLP,
PLAINTIFF,
2019AU626 AMII:d
CLE
§
WESTE
J1
§
§
§
V.
§
CAUSE NO. 1-18-CV-00303-LY
§
CELONOVA BIOSCIENCES, INC.,
DEFENDANT.
§
§
MEMORANDUM OPINION AND ORDER REGARDING
CLAIMS CONSTRUCTION
Before the court in the above-styled and numbered cause are Plaintiff W. H. Wall Family
Holdings LLLP's Opening Claim Construction Brief filed December 27, 2018 (Doe. #46);
Defendant Celonova Biosciences, Inc.'s Opening Claim Construction Brief filed December 27,
2018 (Doc. #45); Plaintiff's Responsive Claim Construction Brief filed January 11, 2019 (Doe.
#47); Defendant's Responsive Claim Construction Brief filed January 12, 2019 (Doe. #49); the
parties' Revised Joint Claim Construction Statement filed January 18, 2019 (Doe. #51); and the
parties' claim-construction presentations.
The court held a claim-construction hearing on January 22, 2019.
See Markman
v.
Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370
(1996). After considering the patent and its prosecution history, the parties' claim-construction
briefs, the applicable law regarding claim construction, and argument of counsel, the court now
renders its order with regard to claim construction.
Introduction
I.
The court renders this memorandum opinion and order to construe Claim 30 of United
States Patent No. 6,974,475 ("the '475 Patent") entitled "Angioplasty stent." Plaintiff W. H.
Wall Family Holdings LLLP ("Wall") is the owner of the '475 Patent, which relates to a
prosthesis in the form of a stent. Specifically, the asserted claim of the '475 Patent is directed to
a method of placement of a stent for maintaining a minimum opening through an artery "or the
like." Wall alleges that Defendant Celonova Biosciences, Inc. ("Celonova") infringes claim 30
of the '475 Patent through making, using, offering for sale, selling, or importing infringing
products.
Legal Principles of Claim Construction
II.
Determining infringement is a two-step process. See Markman
v.
Westview Instruments,
Inc., 517 U.S. 370, 384 (1996) ("[There are] two elements of a simple patent case, construing the
patent and determining whether infringement occurred.
. .
."). First, the meaning and scope
of
the relevant claims must be ascertained. Id. Second, the properly construed claims must be
compared to the accused device. Id. Step one, claim construction, is the current issue before the
court.
The court construes patent claims without the aid of a jury. See Markman, 52 F.3d at
979. The "words of a claim 'are generally given their ordinary and customary meaning."
Phillips
v.
v.
AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Vitronics Corp
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). "[T]he ordinary and customary
meaning of a claim term is the meaning that the term would have to a person of ordinary skill in
the art in question at the time of the invention.
.. ."
Id. at 1313. The person
of ordinary skill in
the art is deemed to have read the claim term in the context of the entire patent. Id. Therefore, to
2
ascertain the meaning of a claim, a court must look to the claim, the specification, and the
patent's prosecution hIstory. Id. at 1314-17; Markman, 52 F.3d at 979.
Claim language guides the court's construction of a claim term. Phillips, 415 F.3d at
1314. "[T]he context in which a term is used in the asserted claim can be highly instructive." Id.
Other claims, asserted and unasserted, can provide additional instruction because "terms are
normally used consistently throughout the patent.
. .
." Id. Differences among claims, such as
additional limitations in dependent claims, can provide further guidance. Id. at 1314-15.
Claims must also be read "in view of the specification, of which they are a part."
Markman, 52 F.3d at 979.
"[T]he specification 'is always highly relevant to the claim
construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a
disputed term."
Phillips, 415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582).
In the
specification, a patentee may defme a term to have a meaning that differs from the meaning that
the term would otherwise possess. Id. at 1316. In such a case, the patentee's lexicography
governs. Id. The specification may also reveal a patentee's intent to disavow claim scope. Id.
Such intention is dispositive of claim construction. Id. Although the specification may indicate
that a certain embodiment is preferred, a particular embodiment appearing in the specification
will not be read into the claim when the claim language is broader than the embodiment. Electro
Med. Sys., S.A. v. Cooper Life Scis., Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994).
The prosecution history is another tool to supply the proper context for claim
construction because it demonstrates how the inventor understood the invention. Phillips, 415
F.3d at 1317. A patentee may also serve as his own lexicographer and define a disputed term in
prosecuting a patent. Home Diagnostics, Inc.
2004).
v.
LifeScan, Inc., 381 F.3d 1352, 1356 (Fed. Cir.
Similarly, distinguishing the claimed invention over the prior art during prosecution
3
indicates what a claim does not cover. Spectrum Int'l, Inc.
v.
Sterilite Corp., 164 F.3d 1372,
1378-79 (Fed. Cir. 1988). The doctrine of prosecution disclaimer precludes a patentee from
recapturing a specific meaning that was previously disclaimed during prosecution.
Eng'g, Inc.
v.
Omega
Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003). A disclaimer of claim scope
must be clear and unambiguous. Middleton, Inc.
v.
3M Co., 311 F.3d 1384, 1388 (Fed. Cir.
2002).
Although "less significant than the intrinsic record in determining the legally operative
meaning of claim language," the court may rely on extrinsic evidence to "shed useful light on the
relevant art." Phillips, 415 F.3 d at 1317 (internal quotations omitted). Technical dictionaries
and treatises may help the court understand the underlying technology and the manner in which
one skilled in the art might use a claim term, but such sources may also provide overly broad
definitions or may not be indicative of how a term is used in the patent. See id. at 1318.
Similarly, expert testimony may aid the court in determining the particular meaning of a term in
the pertinent field, but "conclusory, unsupported assertions by experts as to the definition of a
claim term are not useful to a court." Id. Generally, extrinsic evidence is "less reliable than the
patent and its prosecution history in detennining how to read claim terms
. . .
." Id. Extrinsic
evidence may be useful when considered in the context of the intrinsic evidence, id. at 1319, but
it cannot "alter a claim construction dictated by a proper analysis
Line Techs., Inc.
v.
of the intrinsic evidence," On-
BodenseewerkPerkin-Elmer GmbH, 386 F.3d 1133, 1139 (Fed. Cir. 2004).
4
III.
Discussion
A.
Disputed Terms
The parties dispute the construction of five terms.
Each disputed term is discussed
separately.
1.
"coating"
The parties' proposed constructions of this term, as used in Claim 30 of the '475 Patent,
are listed in the following table:
Wall's Proposed Construction
Celonova's Proposed Construction
"a selectively evaporable covering; a
temporary or permanent layer of a substance
applied to a surface"
Indefmite
Alternatively,
beyond
no
construction
Alternatively, "material applied to the mesh
in order to define openings throughout the
mesh"
necessary
Celonova argues that the term "coating" is indefinite, because it is unclear in Claim 30
whether the "coating" itself is "defming a plurality of openings throughout the mesh."
Alternatively, Celonova argues that, if the term is not indefmite, the term should be construed to
mean that the coating is a material applied to the mesh in order to define openings throughout the
mesh. Wall contends that the term "coating" would be understood by a person of ordinary skill
in the art and should be given its plain and ordinary meaning, or the term should be construed as
"a selectively evaporable covering; a temporary or permanent layer of a substance applied to a
surface." The court agrees with Celonova's construction of the term.
A claim is indefinite if it does not reasonably inform a person of ordinary skill in the art
of the claim scope. IPXL Holdings, L.L.C.
v.
Amazon.com, Inc., 430 F.3d 1377, 1383-84 (Fed.
Cir. 2005). "Claim language employing terms
of degree has long been found defmite where it
5
provided enough certainty to one of skill in the art when read in the context of the invention."
Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370 (Fed. Cir. 2014). Because claim terms
are normally used consistently throughout the patent, the usage of a term in one claim can often
illuminate the meaning of the same term in other claims. Phillips, 415 F.3 d at 13 14; see also
Rexnord Corp.
v.
Laitram Corp., 274 F.3d 1336, 1342 (Fed. Cir. 2001) ("[A] claim term should
be construed consistently with its appearance in other places in the same claim or in other claims
of the same patent.").
The court concludes that the term "coating" is not indefmite and construes it to be
"material applied to the mesh for defining a plurality of openings throughout the mesh." Claims
25 and 28
of the '475 Patent consistently refer to "a method of placement of a sleeve
.
comprising: providing a radially collapsed sleeve formed in a mesh defmmg a plurality of
openings throughout the mesh.
openings.
. .
. .
and a coating applied to the mesh for defining a plurality
.". The language in Claim 30 is very similar: "A
method.
. .
of
providing a sleeve
formed in a mesh and a coating applied to said mesh and defming a plurality of openings.
. .
Therefore, the term "coating" in Claim 30 is not indefmite when it is construed consistently with
its appearance in Claims 25 and 28, and a person
of ordinarily skill in the art
is reasonably
informed that "coating" means "material applied to the mesh for defining a plurality of
openings."
Wall contends no construction for "coating" is necessary because the term is used
consistent with plain and ordinary meaning. A court may depart from the plain and ordinary
meaning of a claim term in only two instances: lexicography and disavowal. Hill-Rom Servs.,
Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014). Because the patentee has limited the
term in the claims of the '475 Patent, the term requires construction beyond its plain and
ordinary meaning. Wall has provided no evidence that the use of "coating" in Claim 30 should
be attributed a meaning different from that of Claims 25 and 28.
Wall also asserts that the purpose of the coating is not to define the openings, and
"defining a plurality of openings throughout the mesh" means that the openings in the mesh are
not covered by the coating. To support this assertion, Wall cites Figure 5 of the '475 Patent and
portions of the specification: "the network 31 is simply coated with the material 32 so that
openings 34 are distributed throughout the material." '475 Patent, 3:54-52. The court is not
persuaded. "The written description part of the specification itself does not delimit the right to
exclude. That is the function and purpose of claims." Markman, 52 F.3d at 980. It is unclear
whether the part of specification cited by Wall indicates that the purpose of the coating is to
define a plurality of openings throughout the mesh. However, because the patentee has clearly
limited the term "coating" to that purpose in the claims, the court need not to determine this
issue. Further, Wall itself also states in its response brief that "The coating is applied to the mesh
in a way that defines the boundaries of the openings."
Wall further requests that the court to construe the term "coating" as "a selectively
evaporable covering; a temporary or permanent layer of a substance applied to a surface." Wall
offered no support in the '475 Patent or its prosecution history to support this construction. Wall
argues that those of ordinary skill in the art would readily understand the term as what it is
proposing, citing a scientific article as evidence: Xiaodong Ma; Tim Wu; Michael P Robich,
Durg-eluting Stent Coatings: Interventional Cardiology, 2012;4(1): 73-83. Celonova responds
by arguing that the article was published in 2012, nearly 25 years after the '475 Patent was filed,
and therefore is irrelevant to the claim construction
of the '475 Patent. The court agrees. The
ordinary and customary meaning of a claim term is the meaning that the term would have to a
person of ordinary skill in the art in question at the time of the invention, in other words, as of
the effective filing date of the patent application. Phillips, 415 F.3d at 1313; See also PC
Connector Solutions LLC v. SmartDisk Corp., 406 F.3d 1359, 1363 (Fed. Cir. 2005) (meaning of
claim "must be interpreted as of {the] effective filing date" of the patent application).
Therefore, the court concludes the construction of "coating" to be: material applied to
the mesh for defming a plurality of openings throughout the mesh.'
2. "radially collapsed"
The parties' proposed constructions of this term, as used in Claim 30 of the '475 Patent,
are listed in the following table:
Wall's Proposed Construction
Celonova's Proposed Construction
"moved inwardly toward a common center"
"radially collapsed position that is not
deformed beyond the sleeve's elastic limit"
The parties dispute whether the patentee limited the scope of this term during the '475
Patent's prosecution. Wall asserts that its proposed construction would be well understood by
those of skill in the art and it is consistent with plain and ordinary meaning of the term.
Celonova contends that the patentee disclaimed deformable stents when the patentee
distinguished radially collapsible and deformable sleeves to overcome rejections from the United
States Patent and Trademark Office ("USPTO").
The court concludes that the term "radially collapsed" requires no construction because
its meaning is apparent from the context in which it is used in the claims. "[W]e look to the
words of the claims themselves
Corp.
v.
1
. . .
to define the scope of the patented invention." Vitronics
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Claim 30
of the '475 Patent
Throughout, the bolded claim terms indicate the court's adopted construction.
states:
".
.
.
mounting the sleeve in a radially collapsed position on the catheter
.
.
.
radially
expanding the sleeve in the position of the lumen where the minimum opening in the lumen is to
be maintained.
. .
." Reading within the claim, it is logical to conclude that a person
of ordinary
skill in the art will understand the claimed stents do not deform beyond the sleeve's elastic limit,
because a radially collapsed sleeve is not capable of returning to its expanded position if it was
deformed beyond its elastic limit.
The specification of the patent further supports that no construction of the term beyond its
ordinary and plain meaning is necessary. For example, the patentee states in the abstract of the
'475 Patent: "The prosthesis can be inserted while in a collapsed position, then expanded and
locked at the larger diameter." Also, the '475 Patent describes an embodiment where the hook
arrangement is disengaged after continuous expanding, thereby causing the stent to collapse and
enabling it to be repositioned or removed. A person of skill in the art can readily understand
after reading the specification that the disclosed stent cannot be deformable; otherwise, it cannot
be successfully repositioned or removed as described in the specification. Therefore, Celonova's
proposed construction of the term "radially collapsed" is not necessary.
The prosecution history is another tool to supply the proper context for claim
construction because it demonstrates how the inventor understood the invention. Phillips, 415
F.3d at 1317. In the prosecution history of the '475 Patent, the inventor repeatedly sought to
distinguish his invention from the prior
art2
by arguing that the prior art discloses deformable,
not radially collapsible, sleeves: "Palmaz prosthesis is made of deformable material that is
expanded beyond its elastic limit, is not disclosed as being radially collapsible, is not disclosed
as biased toward its collapsed position;" "Palmaz discloses a graft that is not radially collapsible
2
U.S. Patent No. 4,733,665 issued to Palmaz.
and relies on deformation of its material when expanded." Wall counters that these statements
were made in reference to different claims and a separate
application.3
However, the term
"radially collapsed" is used consistently throughout the '475 Patent and the '122 Application.
By arguing that Palmaz is distinguishable because it discloses deformable sleeves, the inventor
would have assumed that a person of ordinary skill in the art will reasonably understand that the
plain and ordinary meaning of "radially collapsed" sleeves are different from deformable
sleeves. In addition, Wall does not provide support that the meaning of the term "radially
collapsed" in Claim 30 of the '475 Patent should be constructed differently than in other claims
of the '475 Patent or the '122 Application.
The court concludes that the evidence does not support a construction of this term in a
way other than the plain and ordinary meaning of the words. The court concludes that no
construction of the claim term is necessary.
3. "radially expanding"
The parties' proposed constructions of this term, as used in Claim 30 of the '475 Patent,
are listed in the following table:
Wall's Proposed Construction
Celonova's Proposed Construction
"increasing the extent, surface or bulk of the
tube outwardly from a common center"
"radially expanding the sleeve without
deforming the sleeve beyond its elastic limit"
The parties agree that this term as used in the context of Claim 30 is very similar to the
term "radially collapsed." Thus, for reasons substantially similar to those applicable to "radially
collapsed," the court concludes that the evidence does not support a construction of this term in a
Specifically, Wall contends that these statements are limited to Claims 8, 15, 17, and 18
of the '475 Patent, and Claim 1 of the U.S. Patent Application No. 10/293,122 ("the '122
Application"). The '122 Application is eventually combined with another co-pending application
and issued as the '475 Patent.
10
way other than the plain and ordinary meaning of the words, because a person of ordinary skill in
the art will understand that the disclosed stent will not be expanded beyond its elastic limit.
The court concludes that no construction of the claim term is necessary.
4. "sleeve"
The parties' proposed constructions of this term, as used in Claim 30 of the '475 Patent,
are listed in the following table:
Waft's Proposed Construction
Celonova's Proposed Construction
No construction necessary beyond the plain
and ordinary meaning of the word
"a
Alternatively, "a tube"
having
structure
a longitudinal
discontinuity running the entire length of the
structure; the structure is either biased
towards a closed position and lockable in an
open position, or biased in an open position
and lockable in a closed position"
Wall argues that the plain and ordinary meaning of the term "sleeve" is readily
understood, and one of ordinary skill in that art would not need to look any further.
Alternatively, Wall argues that the term should be construed as "a tube," because the sleeve
Celonova argues that it is the longitudinal
described in the patent is tubular in shape.
discontinuity in the sleeve that allows the sleeve to contract and expand, which produces the
desired flexibility of the claimed stent. The court agrees with Celonova that the term should be
construed as a tubular structure having a discontinuity. However, the court also agrees with Wall
that the rest of Celonova's proposed construction is redundant and unnecessary.
Representations made by the patentee in the specification of the '475 Patent require that
"sleeve" refer to a tubular structure having a discontinuity. "When a patent thus describes the
features of the 'present invention' as a whole, this description limits the scope of the invention."
Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1308 (Fed. Cir. 2007). In the
11
summary of the '475 Patent, the patentee states that "This invention provides a stent.
. .
the stent
being in the form of a sleeve having a discontinuity so the sleeve has a collapsed position to be
assumed during placement of the stent, and an expanded position for use in its final location for
maintaining the desired opening." Thus, the specification of the '475 Patent limits the scope of
the term "sleeve" to a tubular structure having a discontinuity.
Wall contends that "a longitudinal discontinuity" is not an inherent characteristic to be
found in every sleeve recited in the '475 Patent.
Wall conectly points out that the global
description of the stent refers only to a "discontinuity," but not "a longitudinal discontinuity
running the entire length of the structure." In addition, Celonova does not provide support for its
proposed construction that the structure recited in Claim 30 is limited to stents with either
"biased closed, locked open" or "biased open, locked closed" positions. The court further agrees
with Wall that adopting Celonova's proposed construction in full will be redundant and difficult
to understand.
Wall also argues that the inventor specifically recited in Claims
1
and 7 that the sleeve in
those claims had a longitudinal discontinuity and declined to recite that same language in Claim
30, so that limitation should not apply. The "present invention" description is not so limiting
when other intrinsic evidence suggests that invention reaches beyond that description.
Absolute Software, Inc.
v.
See
Stealth Signal, Inc., 659 F.3d 1121, 1136-37 (Fed Cir. 2011).
However, the court is not convinced that the global description should not apply to Claim 30.
Claim 30 requires the stent has both an open position and a collapsed position, which falls within
the language of the global description. No other intrinsic evidence suggests that the disclosed
method in Claim 30 requires a stent beyond the global description being in the form of a sleeve
having a discontinuity.
12
Therefore, the court concludes the construction of "sleeve" to be: a tubular structure
having a discontinuity.
5. "mesh"
The parties' proposed constructions of this term, as used in Claim 30 of the '475 Patent,
are listed in the following table:
Wall's Proposed Construction
Celonova's Proposed Construction
No construction necessary beyond the plain
and ordinary meaning of the word
"knit or woven network"
Alternatively, "a network"
Wall asserts that no construction is necessary, or its construction is in accordance with
the plain and ordinary meaning of the term as understood by a person of ordinary skill in the art.
Celonova argues that the intrinsic evidence suggests that the '475 Patent describes "mesh" in the
form of a "knit or woven network." The court agrees with Wall that no construction of the term
is necessary
One
of ordinary skill in the art can readily understand the use of the word "mesh" in the
context, and the construction of the term is unnecessary. There is no evidence that the patentee
acted as his own lexicographer to define "mesh" in a specific way. Therefore, to conclude that
the term requires construction beyond its plain and ordinary meaning, the court would need to
fmd that "the specification [or prosecution history] makes clear that the invention does not
include a particular feature or is clearly limited to a particular form of the invention."
Hill-Rom
Servs., 755 F.3d at 1372. (internal citations and quotations omitted).
In support of its construction, Celonova points to the use of the term "mesh" in the
summary of the invention ("knit or woven mesh") and the written description ("woven
13
network"). However, construing the term "mesh" to be "knit or woven network" will render the
language as surplusage.
See, e.g., Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 82 Fed.
Appx. 691, 694 (Fed. Cir. 2003) (finding error in district court's claim construction that rendered
certain terms as "surplusage."); Ethicon Endo-Surgery, Inc.
v.
US. Surgical Corp., 93 F.3d 1572,
1578 (Fed. Cir. 1996) (avoiding claim construction that would render language as surplusage);
Texas Instruments, Inc.
v.
US. Int'l Trade Comm'n, 988 F.2d 1165, 1171 (Fed. Cir. 1993)
(same). In addition, the specification does not teach that the mesh is limited to being knit or
woven. When "woven network" is used in the specification, it is indicated that it is one manner
of forming the mesh: "Though many different materials may be utilized in forming the stents of
the present invention, one form of material is illustrated in FIG. 5
. . .
there is a woven network
indicated at 31." '475 Patent, 3:38-41. Therefore, the court does not find that the specification
makes clear that the term "mesh" is clearly limited to a particular form.
Celonova also argues that "mesh" should not simply be construed to mean "network"
because during prosecution the patentee replaced the claim language "a network" with "a mesh"
to overcome the indefmite objection
of the USPTO. The court agrees. Because the USPTO
determined that the recitation of "having a network" fails to positively set forth the structural
components that define the "network," the patentee amended the claim language to "formed in a
mesh." The patentee cannot recapture what he has disclaimed during prosecution. Omega Eng 'g,
Inc., 334 F.3d at 1323 (Fed. Cir. 2003).
Therefore, the court concludes that no construction of the claim term is necessary.
14
B.
Alternative Agreed Constructions
The parties dispute whether two terms in Claim 30 are indefinite. To the extent that
either or both of these terms are not held indefinite, the parties have agreed to the corresponding
alternative construction as listed in the table below.
Claim
TernilPhrase
Celonova's
Position
"promoting
epithelialization"
Indefmite
"retarding restenosis of the
lumen with the
sleeve"
Indefinite
Parties' Alternative Agreed
Construction
"promoting growth of epithelial cells
around the sleeve and tis openings"
"slowing or preventing the recurrence of
the narrowing of the lumen with the
sleeve"
Celonova asserts that the two terms are indefinite because it is unclear to a person of skill
in the art how to perform the biological steps of "promoting epithelialization" and "retarding re-
stenosis," and because the '475 Patent provides no guidance or measure on how to discern
whether these two steps have been effective. Wall argues that a person having ordinary skill in
the art would understand that using a stent with openings like those described in Claim 30 would
promote epithelialization and retards re-stenosis. The court agrees with Wall.
A patent is indefmite "if its claims, read in light of the specification delineating the
patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the
art about the scope of the invention." Nautilus, Inc.
v.
Biosig Instruments, Inc., 134 S. Ct. 2120,
2124 (2014). The specification of the '475 Patent explains that the use of a stent with openings
promotes epithelialization: "it will be understood that the use of a plurality of openings 34
promotes epithelialization to promote incorporation of the stent into the vessel well;" "the spaces
15
between the segments providing adequate openings for initial fluid drainage and subsequent
epithelialization." Therefore, a person of ordinary skill in the art would reasonably understand
that using the claimed stent with a plurality of openings in the lumen can promote
epithelialization.
Celonova also argues that the '475 Patent provides no guidance to measure the
effectiveness of the steps. A patent needs not explicitly include information that is already well
known in the art. Nautilus, 134 S. Ct. at 2124. "[I]f a skilled person would choose an established
method of measurement, that may be sufficient to defeat a claim of indefmiteness, even if that
method is not set forth in haec verba in the patent itself" Id. (citing Dow Chem. Co.
v.
Nova
Chems. Corp., 809 F.3d 1223, 1224 (Fed. Cir. 2015)). The patentee explains in the information
disclosure statement of the '475 Patent that it is known in the prior art that the use of a stent to
keep the lumen open after a balloon angioplasty reduces the chance of re-stenosis. Therefore,
the lack of description of the effectiveness of the steps alone does not render the terms indefinite.
Therefore, the court concludes that the two tenns are not indefmite. The court adopts the
agreed construction of those claim terms and construes the term "promoting epithelialization" to
be: promoting growth of epithelial cells
around the sleeve and its openings; the term
"retarding re-stenosis of the lumen with the sleeve" to be: slowing or preventing the
recurrence of the narrowing of the lumen with the sleeve.
16
C.
Summaiy Table of Agreed and Disputed Terms
Term
Court's Construction
"coating"
material applied to the mesh for
defining a plurality of openings
throughout the mesh
"radially collapsed"
no construction of the claim term is
necessary
"radially expanding"
no construction of the claim term is
necessary
"sleeve"
a tubular structure having a discontinuity
"mesh"
no construction of the claim term is
necessary
"promoting epithelialization"
promoting growth of epithelial cells
around the sleeve and its openings
"retarding re-steno sis of the lumen with
the sleeve"
slowing or preventing the recurrence of the
narrowing of the lumen with the sleeve
17
IV.
Conclusion
For the above reasons, the court construes the disputed claims as noted and so ORDERS.
No other claim terms require construction.
IT IS FURTHER ORDERED that this case is set for a Scheduling Conference on
October 17, 2019, at 2:00 p.m., in Courtroom 7, Seventh Floor, United States Courthouse, 501
W. 5th Street, Austin, Texas 78701.
If the case
is not settled, the parties shall confer in an
L'
attempt to reach agreement on a schedule to follow for the remainder of the case. The court will
render a scheduling order as a result of the conference.
SIGNED
thiday of August, 2019.
UNI ED STAT S DISTRICT JUDGE
IE
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