[00:00:00] Speaker 03:
Our next case is McCatt Cardiovascular LLC v. a Biomag Inc.

[00:00:07] Speaker 03:
Docket 23-2045.

[00:00:09] Speaker 03:
Councilor Bradley, you have reserved three minutes of your time for rebuttal, correct?

[00:00:17] Speaker 04:
Yes, Your Honor.

[00:00:18] Speaker 03:
Okay.

[00:00:18] Speaker 03:
We're ready when you are.

[00:00:22] Speaker 04:
May it please the Court.

[00:00:23] Speaker 04:
The District Court erred in its constructions of two sets of claim terms.

[00:00:28] Speaker 04:
In both instances,

[00:00:30] Speaker 04:
The district court relied on the prosecution history of a family member to impart new restrictions on the claim terms here at issue.

[00:00:39] Speaker 04:
The court's approach was wrong.

[00:00:41] Speaker 04:
The court misapplied this court's law on when prosecution histories of family members can be relevant.

[00:00:49] Speaker 04:
And the district court misapplied this court's law on when and what types of statements can give rise to a disclaimer or disavowal of claims code.

[00:01:00] Speaker 04:
The first term I want to talk about this morning is the phrase, guide mechanism comprising a lumen.

[00:01:08] Speaker 04:
And the parent, the grandparent, filed history that the district court relied on.

[00:01:12] Speaker 05:
Can I ask you this question?

[00:01:15] Speaker 05:
Is a lumen something other than the pure space that is open between a starting point and an end point?

[00:01:28] Speaker 04:
Absolutely, Your Honor.

[00:01:29] Speaker 04:
Yes, it is.

[00:01:30] Speaker 04:
It is a dedicated lumen.

[00:01:32] Speaker 04:
It is a thing that you can hold and touch.

[00:01:35] Speaker 04:
And the district court was clear about that.

[00:01:37] Speaker 04:
In APPX 20, the district court said that a lumen is, quote, the lumen component of the guide mechanism.

[00:01:45] Speaker 04:
The guide mechanism, you have a guide wire, and it goes through a lumen.

[00:01:49] Speaker 04:
But the lumen is a component itself.

[00:01:51] Speaker 04:
You can hold it in your hand.

[00:01:56] Speaker 05:
At least right now, I don't think that this specifically, it may not matter for either of the two arguments this morning, but your view is that just the empty space inside

[00:02:11] Speaker 05:
the, um, pump housing.

[00:02:14] Speaker 05:
And I hear, I mean pump, you know, the traditional sense, not the cannula that's stuck on the front of it.

[00:02:21] Speaker 05:
Um, that that empty space is not just, um, itself a lumen.

[00:02:27] Speaker 04:
It is not the lumen of the guide mechanism being discussed in the patent claims.

[00:02:34] Speaker 04:
And, and I don't mean to quibble, but, you know, technically like the cannula itself has a lumen.

[00:02:40] Speaker 04:
It has an open space.

[00:02:42] Speaker 04:
But the cannula's lumen, that open space inside the cannula, that is not the guide mechanism lumen.

[00:02:48] Speaker 04:
The guide mechanism lumen is not an empty space.

[00:02:51] Speaker 03:
It is a vice.

[00:02:52] Speaker 03:
Lumen refers to just a space.

[00:02:54] Speaker 03:
It's not a physical, tangible object, correct?

[00:02:57] Speaker 04:
What was the first noun?

[00:02:59] Speaker 03:
Lumen refers just to a pathway, a space.

[00:03:03] Speaker 03:
It's not a physical object.

[00:03:07] Speaker 04:
That is not correct in the context of the guide mechanism that has a lumen, because the guide wire goes into and through a lumen.

[00:03:16] Speaker 04:
And the parties at every level in the district court itself recognize that the lumen is a dedicated device.

[00:03:23] Speaker 04:
Like I mentioned, the district court called it a lumen component of the guide mechanism.

[00:03:29] Speaker 04:
Abby Amed talked about the lumen as, quote, it requires a lumen designed for a guide wire.

[00:03:36] Speaker 04:
And they say in APTX 1302, they reference a dedicated guidewire lumen.

[00:03:42] Speaker 04:
And there's other areas that goes on where there's more instances of this.

[00:03:46] Speaker 05:
How much of what we've just been talking about do we have to decide here as opposed to understand that there might yet be a to-be-decided issue on a remand if you get one?

[00:04:02] Speaker 04:
Very little, if at all.

[00:04:03] Speaker 04:
And the reason is because,

[00:04:05] Speaker 04:
the district court and both of the claim terms at issue was relying on a family member prosecution history.

[00:04:13] Speaker 04:
And those family members were not to be consulted, because those family members were dealing with different claim terms.

[00:04:19] Speaker 04:
And this court's law is very clear.

[00:04:21] Speaker 04:
In rescue net, for example, this court said it is, quote, irrelevant when you have a claim term that is different in the family member.

[00:04:31] Speaker 00:
Does the doctor of disclaimer, though, require the claim limitations to be exactly identical?

[00:04:36] Speaker 00:
Is that what you're arguing, or what are you arguing?

[00:04:38] Speaker 04:
It does need to be, this court has repeatedly said, a common term, the same term.

[00:04:44] Speaker 04:
There's one case, advanced cardiovascular, where they were synonyms.

[00:04:48] Speaker 04:
But here, we don't have anything of the sort.

[00:04:50] Speaker 04:
They're not even close.

[00:04:51] Speaker 04:
The term at issue, the first term, is guide mechanism comprising a woman.

[00:04:56] Speaker 04:
You have a guide mechanism, and that thing has a woman.

[00:04:59] Speaker 04:
It doesn't say anything about, in this claim, where that lumen is, distal to this, anywhere.

[00:05:05] Speaker 04:
The parent file history, the term and issue that the district court relied on was different.

[00:05:11] Speaker 04:
It said the entire elongate lumen was distal to the pump.

[00:05:18] Speaker 04:
That phrase distal to the pump, it was changed to say distal to the pump's rotor.

[00:05:23] Speaker 04:
We talk about that's not even a disvalve any claim scope.

[00:05:26] Speaker 04:
That's a separate issue.

[00:05:27] Speaker 04:
But the point is,

[00:05:28] Speaker 04:
The claim term being addressed in that grandparent application dealt with a lumen distal to the pump.

[00:05:36] Speaker 04:
Here, in our claim, the claim just says a lumen.

[00:05:40] Speaker 04:
The guide wire has a lumen.

[00:05:42] Speaker 04:
And the district court was not allowed to go take that file history that dealt with a different term dealing with that placement of the lumen and take that and suddenly say, oh, well, that now applies here.

[00:05:56] Speaker 04:
We were not in the earlier file history saying, by definition, when we say lumen, we mean it can't be distal to something.

[00:06:05] Speaker 04:
That earlier claim recited a specific placement of the lumen.

[00:06:09] Speaker 04:
But we didn't have to, and we didn't here.

[00:06:11] Speaker 04:
And you can't use that earlier file history dealing with a different claim term here.

[00:06:17] Speaker 00:
What about the fact that they're overlapping claim terms?

[00:06:20] Speaker 00:
I hear if you take the whole kind of phrase that you're taking, I can see the differences that you're identifying.

[00:06:26] Speaker 00:
But what if there's overlap in the two phrases in the two different file histories?

[00:06:32] Speaker 04:
Yes, Your Honor.

[00:06:34] Speaker 04:
It would make a difference if the subject of the amendment, if the pertinent events in that family member were dealing with the overlap.

[00:06:43] Speaker 04:
But here, the overlap is the word lumen, but the events in the family

[00:06:50] Speaker 04:
family member prosecution history, were not talking about the loom.

[00:06:54] Speaker 04:
And they were talking about the placement of it distal to the pump, which was changed to, say, distal to the pump's rotor, which again, not even a substantive change.

[00:07:03] Speaker 04:
But there was no restriction on.

[00:07:05] Speaker 04:
We didn't say in the earlier prosecution history, to use an analogy, if the claim term was blue, and then the earlier prosecution history and the family member, we said, you know what?

[00:07:15] Speaker 04:
That does not include purple.

[00:07:17] Speaker 04:
Purple is the shade of blue.

[00:07:18] Speaker 04:
It does not include purple.

[00:07:20] Speaker 04:
And we come down later, and now we're dealing with blue.

[00:07:24] Speaker 04:
Yeah, we don't get to say purple.

[00:07:25] Speaker 04:
But in that here, in that earlier prosecution history, the phrase at issue was distal to the intravascular blood pump, which was changed to say distal to the rotor, the pump's rotor.

[00:07:38] Speaker 05:
What about the other piece of prosecution history for the second claim term where, and you'll just correct me if I'm misremembering, I thought it was a point you made here in arguing that there wasn't a disclaimer there or a forfeiture or something to say,

[00:08:04] Speaker 05:
There's a big difference between the lumen and the wire.

[00:08:08] Speaker 05:
The wire you can remove when you want to have the device that you've now got in place work.

[00:08:15] Speaker 05:
You can't remove the lumen, and if the lumen were between the rotors, then the rotors wouldn't spin.

[00:08:24] Speaker 05:
That's, I think it was with that in mind that at least I was asking the question about whether lumen is just space.

[00:08:32] Speaker 04:
I see.

[00:08:33] Speaker 04:
Yes, for that.

[00:08:34] Speaker 05:
Because space, that wouldn't be true that the rotors just wouldn't spin.

[00:08:38] Speaker 04:
Correct.

[00:08:38] Speaker 04:
And the idea, the notion, and this is now we're talking about the second claim terms, the guide wire terms in claims one and 24.

[00:08:46] Speaker 04:
The notion of a lumen in this context, the guide mechanism lumen being just a space,

[00:08:53] Speaker 04:
The first time we've heard that is in their red brief.

[00:08:55] Speaker 04:
That's never been the subject of discussion.

[00:08:57] Speaker 04:
And as I said earlier in my argument, the district court and Abiumet itself have talked about it being a dedicated lumen for this purpose.

[00:09:05] Speaker 04:
It is not a space.

[00:09:07] Speaker 04:
That is a newly created argument in the red brief.

[00:09:11] Speaker 04:
And the notion of the difference between a lumen, a physical lumen going between the space between the rotor blades and the guide wire

[00:09:23] Speaker 04:
is the lumen cannot but would not go through the free space between the rotor blades.

[00:09:30] Speaker 04:
Because as we mentioned, the lumen itself stays in place.

[00:09:35] Speaker 04:
So if you put the lumen there in between the free space between the blades that are trying to rotate, the rotor won't work.

[00:09:43] Speaker 04:
The pump won't work.

[00:09:44] Speaker 04:
So you can't have that.

[00:09:46] Speaker 04:
And we agreed with that part of the construction.

[00:09:48] Speaker 04:
The lumen doesn't go through the free space.

[00:09:50] Speaker 04:
But the district court on the guide wire terms

[00:09:53] Speaker 04:
added the additional requirement from a great-great-grandparent pile of history saying that the guide wire itself cannot go through that free space.

[00:10:03] Speaker 04:
We never said that, and there's no disclaimer of that notion.

[00:10:06] Speaker 04:
And the district court and Abu Med recognized that the specification says at least twice that you can remove the guide wire, which means even if it goes in the free space between the rotor blades, it doesn't matter because you're going to withdraw it.

[00:10:21] Speaker 04:
Once you put the guide wire in, then use that guide wire to put the pump system in.

[00:10:28] Speaker 04:
Once it's in place, you take the guide wire out.

[00:10:30] Speaker 04:
So it doesn't matter that the guide wire goes in between the space between the rotor blades, because you're going to withdraw it.

[00:10:36] Speaker 04:
Then the pump can move freely.

[00:10:39] Speaker 04:
And the disclaimer, according to the district court on these terms, stemmed from that great, great grandparent application and a reference called Volcker.

[00:10:51] Speaker 04:
That reference is a reference that we identified on an IDS and never said anything about.

[00:10:58] Speaker 04:
The examiner had allowed the application to issue.

[00:11:03] Speaker 04:
And we submitted an IDS with Volcker and some other references.

[00:11:07] Speaker 04:
Just said, here are the references.

[00:11:09] Speaker 04:
No comment, no substantive remarks about them.

[00:11:12] Speaker 04:
And the examiner, on his own, issued a new notice of allowance and said, these references don't cause any problems.

[00:11:18] Speaker 04:
He said, regarding Volcker,

[00:11:20] Speaker 04:
that it lacks several features of the claimed invention, including that it doesn't have the required woman.

[00:11:27] Speaker 00:
Did McKay invoke Volcker in its response to the IPR petitions itself?

[00:11:33] Speaker 04:
In response, so on the IPR petitions, just first of all, that's not anything the district court relied on.

[00:11:39] Speaker 04:
But in the IPR petitions, Avumed filed a whole series of IPR petitions, but not on this patent, but on four of the others

[00:11:48] Speaker 04:
They asserted a ground of unpatentability based on a reference called Abelhausen.

[00:11:53] Speaker 04:
In their petition, they said Abelhausen is similar to Volcker.

[00:11:58] Speaker 04:
And now here's what we told the Patent Office about Volcker.

[00:12:01] Speaker 04:
We said in our preliminary responses, oh, well, they're telling you that Volcker is like Abelhausen.

[00:12:08] Speaker 04:
Just so you know, dear PTAB, the examiner looked at Volcker and found that it was distinguishable.

[00:12:16] Speaker 04:
That's all we said.

[00:12:17] Speaker 04:
There wasn't anything more to it.

[00:12:18] Speaker 04:
We didn't get into discussions about anything.

[00:12:22] Speaker 04:
We said, they said it's similar to their round of unpatentability.

[00:12:25] Speaker 04:
You should be aware, dear PTAB, that the examiner looked at Volcker and distinguished it.

[00:12:30] Speaker 04:
There was no substantive discussion.

[00:12:32] Speaker 04:
And like I mentioned, the district court did not at all rely on the IPRs.

[00:12:36] Speaker 04:
Abiumet presented the IPRs.

[00:12:38] Speaker 04:
The district court's opinion relied solely on that great-great-grandparent.

[00:12:43] Speaker 04:
And the statements made by the examiner

[00:12:46] Speaker 04:
regarding Volcker when he allowed the patent, and we never even commented.

[00:12:50] Speaker 04:
And this court has made clear that in Unwired Planet and many other cases, that a disclaimer requires a disavowal of claim script that has to be clear and unmistakable.

[00:13:02] Speaker 04:
It requires words or expressions of manifest exclusion or restriction.

[00:13:06] Speaker 04:
And in Salazar, this court said, quote, an applicant's silence regarding statements made by the examiner during prosecution are not enough.

[00:13:15] Speaker 04:
This court said, quote, it cannot amount to a clear number of mistakes.

[00:13:17] Speaker 04:
We'll just disavow claims code.

[00:13:19] Speaker 03:
Okay.

[00:13:20] Speaker 03:
You and your rebuttal time.

[00:13:21] Speaker 04:
I'd like to reserve the rest.

[00:13:22] Speaker 04:
Thank you.

[00:13:24] Speaker 03:
Thank you.

[00:13:29] Speaker 03:
Counselor Hummel.

[00:13:32] Speaker 02:
Am I pronouncing them correct?

[00:13:34] Speaker 02:
Hummel, yes.

[00:13:35] Speaker 02:
Like the little figurines.

[00:13:37] Speaker 02:
Well, they used to be valuable.

[00:13:40] Speaker 02:
They're no longer.

[00:13:41] Speaker 02:
uh... you're going to do the argument in English, right?

[00:13:44] Speaker 02:
Yeah, I'm going to have to do it in English because I don't know German.

[00:13:47] Speaker 02:
May it please the court, Keith Hummel, for the Abia Med parties.

[00:13:51] Speaker 02:
The district court here properly construed and limited the claim terms at issue based not only on the Volcker statements and on the amendment that was done in prior

[00:14:11] Speaker 02:
proceedings before the PTAB and the PTO, but also based on the specification, which the district court was extremely familiar with.

[00:14:23] Speaker 02:
This court has repeatedly said that the limits of the claims can be limited based on the use of the word the present invention is.

[00:14:34] Speaker 02:
And this specification is filled with the words the present invention is.

[00:14:39] Speaker 02:
And in fact, in Lumina,

[00:14:41] Speaker 02:
The court found that we have found disavowal or disclaimer, the words that McKay has been using constantly here, based on clear and unmistakable statements by the patent that limited the claim, such as the present invention includes, or the present invention is, or all embodiments of the present invention are.

[00:15:02] Speaker 00:
That is exactly what happened here.

[00:15:03] Speaker 00:
What is your best intrinsic support for the disclaimer here, in your opinion?

[00:15:08] Speaker 02:
The extrinsic support is the constant statements in the patent about what the scope of the invention is here.

[00:15:16] Speaker 02:
Can you do this point?

[00:15:17] Speaker 02:
We'd like you to column 8, lines 53 to 56.

[00:15:20] Speaker 02:
This is at the appendix 133.

[00:15:25] Speaker 02:
And it says here, as will be described below, the intervascular blood pump system of the present invention overcomes the drawbacks of the prior art

[00:15:36] Speaker 02:
by providing a guide mechanism as part of the intravascular blood pump.

[00:15:42] Speaker 02:
The present invention is also described as three different aspects, broad aspects.

[00:15:48] Speaker 02:
These are not embodiments.

[00:15:49] Speaker 02:
These are broad aspects.

[00:15:50] Speaker 02:
There's no attempt to limit anything to an embodiment here.

[00:15:53] Speaker 02:
The aspects are described in three different ways.

[00:15:57] Speaker 02:
One is a catheter docking system that doesn't use a guide wire.

[00:16:00] Speaker 02:
The other two use guide wires, which are an issue in the claims that we're construing here.

[00:16:06] Speaker 00:
Are you going to a different part of the patent as you're seeing your statements right now?

[00:16:12] Speaker 00:
And if so, what common line are you headed to?

[00:16:15] Speaker 02:
Yeah.

[00:16:15] Speaker 02:
Those parts there, which talks about the first aspect and the second aspect, you have to turn the page of the patent just a few pages.

[00:16:26] Speaker 02:
And you'll see that it says the over-the-wire aspect of it, the side rigor of a rapid exchange, which are synonymous to each other.

[00:16:35] Speaker 02:
And those all start appearing on column nine and continue basically for the next several columns.

[00:16:45] Speaker 02:
There's also a summary which describes the three aspects of the present invention if you go back to column three starting on line four.

[00:16:57] Speaker 02:
All of these, the figures are described, the three aspects are described in great detail.

[00:17:06] Speaker 02:
None of them, none of them describe a guide mechanism that is distal to the cannula.

[00:17:13] Speaker 02:
And if you look at the way the progression is here, the cannula is at the far distal end, away from where the doctor is working on the patient.

[00:17:22] Speaker 02:
You have the cannula, you have the pump, and you have the catheter.

[00:17:26] Speaker 02:
It goes that way.

[00:17:27] Speaker 02:
There is nothing, not one peep of any indication, any teaching in the patent, that the cannula can be distal

[00:17:35] Speaker 02:
that the guide mechanism can be distal to the cannula.

[00:17:40] Speaker 02:
That's what the examiner in the related application, the 238 application, when reading the specification himself, concluded there is no teaching.

[00:17:50] Speaker 02:
He told McKay, this is not enabled.

[00:17:53] Speaker 02:
Your claim that claims an entirely distal guide mechanism, entirely distal to the cannula, is not enabled.

[00:18:02] Speaker 02:
It's not enabled.

[00:18:03] Speaker 02:
They said,

[00:18:04] Speaker 02:
with a boilerplate traversal, well, we disagree.

[00:18:06] Speaker 02:
Everybody does that.

[00:18:08] Speaker 02:
And then they just claim it.

[00:18:09] Speaker 00:
And so it responds to opposing counsel's argument that you should not rely on the parent prosecution history because of differences in claim terms or claim phrases.

[00:18:22] Speaker 02:
Yeah.

[00:18:23] Speaker 02:
There's all of their cases, if you look at them.

[00:18:26] Speaker 02:
There are instances where the claim language may have been identical or not identical, and that was the issue.

[00:18:34] Speaker 02:
But this court's precedents don't rely on identity of claim language.

[00:18:39] Speaker 02:
They also rely on identity of subject matter.

[00:18:42] Speaker 02:
And when we're talking about broad aspects of the claim, we're not talking about one claim against another claim here.

[00:18:47] Speaker 02:
We're talking about broad aspects of the invention.

[00:18:50] Speaker 02:
Does this invention teach a guiding mechanism that's distal to the cannula?

[00:18:55] Speaker 02:
The subject matter before the examiner in the 238 patent and the subject matter before the examiner in the 783 patent were the same.

[00:19:04] Speaker 02:
the placement of the guide mechanism.

[00:19:07] Speaker 02:
That subject matter according to the Wang case is sufficient.

[00:19:11] Speaker 02:
It can be common subject matter.

[00:19:13] Speaker 02:
And then there, the common subject matter was really broad.

[00:19:17] Speaker 02:
And here, the common subject matter is broad.

[00:19:19] Speaker 02:
So I believe the focus on particular language is really a red herring here.

[00:19:26] Speaker 02:
What does the patent teach?

[00:19:28] Speaker 02:
What does the patent teach, one of skill and the art,

[00:19:31] Speaker 02:
Just taking the distal guide mechanism, what does the prosecution history teach the public, teach someone looking at this?

[00:19:41] Speaker 02:
The examiner said the intravascular blood pump includes the cannula.

[00:19:46] Speaker 02:
A guide mechanism distal to that structure, even if he was wrong, distal to that structure, distal to the cannula, is not enabled.

[00:19:56] Speaker 02:
McKay now says, oh, we had all these reasons why that was untrue.

[00:20:02] Speaker 02:
They put in these charts and say there's no surrender of claims to go.

[00:20:06] Speaker 02:
But none of that was put into the public record.

[00:20:09] Speaker 02:
They said none of that until this litigation.

[00:20:11] Speaker 02:
And when the public looks at this, they're going to see a disclaimer.

[00:20:14] Speaker 05:
Sure.

[00:20:14] Speaker 05:
Can I ask you this question, which doesn't have anything to do with the difference in the language between the claim now at issue and the language that was at issue in that?

[00:20:26] Speaker 05:
And there's an argument that the other side makes that there was no narrowing.

[00:20:31] Speaker 05:
And I guess I keep thinking about the following as a somewhat different argument for how there was no narrowing.

[00:20:38] Speaker 05:
The claim, before narrowing, this is back in this enablement type prosecution history, said

[00:20:50] Speaker 05:
the the what guide mechanism where the date i guess the elongate lumen um... was you know sticking out the front of the candle and the amended claims said we're gonna cover everything as long as it doesn't go as long as it starts only at the pump that includes everything that had been in the sticking out in front of the candle there's there's no narrowing that that's what i'm okay i understand because the rejection was you cannot have

[00:21:19] Speaker 02:
First of all, I don't think you need narrowing, you just need change of plan.

[00:21:22] Speaker 02:
So that's one point number one.

[00:21:25] Speaker 02:
Point number two is, there is narrowing.

[00:21:28] Speaker 02:
Because now, what the examiner said is, you cannot have a guide mechanism that is entirely distal to the cannula.

[00:21:40] Speaker 02:
So that starts at the end of the cannula and goes forward.

[00:21:44] Speaker 02:
And if you have to have it distilled to the pump, then you are giving away certain scope there.

[00:21:51] Speaker 02:
At least I think so.

[00:21:52] Speaker 02:
And I think someone reading this would say, yeah, you can't have a, I'm free to actually make one of these devices that allows me to do what the examiner said you couldn't do, which is claim from the end of the cannula forward.

[00:22:08] Speaker 05:
So that's really the word entire is doing a rather lot of work in that.

[00:22:12] Speaker 02:
The word entire is doing a lot of work.

[00:22:13] Speaker 05:
Whatever else is not present here.

[00:22:16] Speaker 05:
And whatever else is not present in the current language is the word entire.

[00:22:20] Speaker 02:
That's true.

[00:22:23] Speaker 02:
There's nothing in the current language in the patent at all that allows something to be entirely distal.

[00:22:31] Speaker 02:
There's no more questions about that one.

[00:22:33] Speaker 02:
I'd like to move to the

[00:22:35] Speaker 02:
to the guidewire claims.

[00:22:36] Speaker 03:
On this guidewire construction, if we affirm on that, then we don't have to reach the disclaimer construction, correct?

[00:22:46] Speaker 02:
That's correct, because the guidewire claims are on both.

[00:22:49] Speaker 02:
I want to address the question that you first raised, Judge Toronto, and that is, I think it was that.

[00:22:56] Speaker 02:
A lumen is a space.

[00:22:57] Speaker 02:
It's not a actual structure.

[00:23:00] Speaker 02:
it's a space uh... that is it that's not a tangible object is no when you think of uh... in cardio vascular cases uh... if you think of a blood vessel the interior of the blood vessel is the lumen that's where you see it the most there's probably a hundred stent cases that have been decided by this court that show that the lumen is the space and in fact the proof of the pudding here is that the cannula is described in the patent as being

[00:23:30] Speaker 02:
being there for the purpose of transporting blood.

[00:23:33] Speaker 02:
That's its purpose.

[00:23:36] Speaker 02:
In this picture here, this is figure three at appendix 95.

[00:23:40] Speaker 02:
Just to show you the picture, you've seen this picture.

[00:23:42] Speaker 02:
This is the pump.

[00:23:45] Speaker 02:
This is the over the wire aspect.

[00:23:47] Speaker 02:
So the over the wire aspect requires the guide wire lumen to go through.

[00:23:54] Speaker 02:
And this is the guide wire here.

[00:23:56] Speaker 02:
So here, this is the part of the cannula.

[00:23:58] Speaker 02:
It extends further on.

[00:24:01] Speaker 02:
The cannula has a big space, and the guide wire just goes through that space.

[00:24:06] Speaker 02:
That's part of the lumen.

[00:24:07] Speaker 02:
That's part of the central lumen that's formed throughout the structure when you have the over-the-wire aspect, which is the first aspect of this invention.

[00:24:16] Speaker 02:
The lumen is not a dedicated space.

[00:24:19] Speaker 02:
Now, I shouldn't say dedicated space, because dedicated space has this loaded word to it.

[00:24:24] Speaker 02:
It is a dedicated space.

[00:24:25] Speaker 02:
It's a space.

[00:24:26] Speaker 02:
It's not a dedicated space that has a dedicated structure.

[00:24:30] Speaker 02:
If the lumen meant you have to have a dedicated structure, then there would have had to have been a separate tube in the cannula that allowed the guide wire to go through.

[00:24:42] Speaker 02:
And here's the proof of the pudding that that's not necessary right here for your three.

[00:24:47] Speaker 05:
So part of what I guess I've been troubled about is, in some sense, thinking about all of this

[00:24:54] Speaker 05:
certainly led me to start thinking about that question.

[00:24:58] Speaker 05:
I don't really understand that that's been the subject of a resolved dispute, whether claim construction or otherwise.

[00:25:08] Speaker 05:
It seems like that's an issue that has actually not been decided.

[00:25:12] Speaker 05:
That might be open for decision on remand, but that hasn't really been decided.

[00:25:18] Speaker 02:
So I guess I would respectfully disagree with that, because the court

[00:25:24] Speaker 02:
who obviously had been through two cases.

[00:25:26] Speaker 02:
You're getting the second case first on appeal, but he had a whole additional case.

[00:25:31] Speaker 02:
He considered in the first go-around whether the guidewire lumen can go through the rotor blades and concluded that they could not.

[00:25:44] Speaker 05:
And McKay... The lumen could.

[00:25:47] Speaker 05:
Why couldn't the lumen go through it if it's just space?

[00:25:51] Speaker 02:
Because of the other aspects of the claims.

[00:25:56] Speaker 02:
The guidewire lumen in the over-the-wire aspect of this goes through the rotor hub.

[00:26:04] Speaker 02:
And if you look at claim 24 here, it's the same picture I was showing you before.

[00:26:09] Speaker 02:
In claim 24, one of the limitations is that the guidewire cannot go through the rotor hub.

[00:26:20] Speaker 02:
So we're not talking about the over the wire aspect of this.

[00:26:23] Speaker 02:
There's no teaching that the wire can go through the space between the rotor blades.

[00:26:30] Speaker 02:
The judge found that since the guide wire lumen, which he did not define as a separate structure, that the guide wire lumen could not go through.

[00:26:40] Speaker 02:
What I'm saying now is it follows through common sense that the guide wire cannot go through

[00:26:47] Speaker 05:
Except, I mean, what the other side keeps saying is you can't remove the lumen, you can remove the guide wire.

[00:26:53] Speaker 05:
And it's perfectly fine to have the wire when you're installing it, as long as you pull it out when you want to turn it on.

[00:27:02] Speaker 02:
The lumen is again, the space.

[00:27:06] Speaker 02:
So there's no reason to remove the lumen.

[00:27:09] Speaker 02:
There's no teaching in the patent anywhere that says you can put a lumen and then remove the lumen.

[00:27:17] Speaker 02:
that you can put the guide wire and remove the guide wire.

[00:27:20] Speaker 02:
And the proof that the guide wire cannot go through the rotor blades is really the prosecution history of the 728, where they endorsed the examiners.

[00:27:39] Speaker 02:
I'm sorry, the IPRs that endorsed the examiners' interpretation of Volcker as being teaching the prior art.

[00:27:47] Speaker 02:
Volker has the guide bar that goes through the free space in the rotor blades.

[00:27:54] Speaker 02:
And what McKay did in defending against the IPRs successfully, against institution of the IPRs, said, the art that's in front of you is just like the art, including Volker, specifically named Volker, that was before the examiner before, and he found that that was prior art

[00:28:16] Speaker 02:
which was not invalidating, right?

[00:28:19] Speaker 02:
It was not invalidating.

[00:28:20] Speaker 02:
So the fact that the rotor blade, that the wire went through the rotor blade, was not invalidating.

[00:28:26] Speaker 02:
And so therefore, to interpret their patents to be valid, which we have to do to reclaim construction, we should interpret it so that the wire doesn't go through the rotor blades.

[00:28:37] Speaker 02:
And again, I'll come back to, because there's 10 seconds on my clock, I'll come back to you will look in vain, in vain,

[00:28:45] Speaker 02:
for any teaching in this patent that shows that it can go through, that the guide wire can go through the room.

[00:28:52] Speaker 03:
Can a guide wire function without a lumen?

[00:28:56] Speaker 02:
The guide wire has to go through some lumen.

[00:29:01] Speaker 03:
So if there's no lumen, there's no guide wire.

[00:29:03] Speaker 02:
If there's no lumen, you cannot put the guide wire through it.

[00:29:07] Speaker 03:
but again the lumen is a space.

[00:29:10] Speaker 03:
There's no space to put it through.

[00:29:11] Speaker 02:
There's no space to put it through, right.

[00:29:13] Speaker 02:
So it has to be formed, the patent says you can form it as this central lumen which goes through everything or you can stick it on the outside of the cannula and that's the side rigor.

[00:29:26] Speaker 03:
You're out of time.

[00:29:27] Speaker 03:
You want to conclude or are you done?

[00:29:30] Speaker 02:
I'll ask that you affirm the judgment below.

[00:29:32] Speaker 02:
Thank you for your time.

[00:29:40] Speaker 04:
A few points.

[00:29:42] Speaker 04:
And I do want to talk about the file histories and the relation.

[00:29:45] Speaker 03:
Just say it.

[00:29:47] Speaker 03:
Three minutes.

[00:29:47] Speaker 03:
I'm going to restore you back to that.

[00:29:48] Speaker 04:
Thank you, Your Honor.

[00:29:49] Speaker 04:
Appreciate that.

[00:29:52] Speaker 04:
On this notion about the loom and it's the free space, it's trying to be kind with the words.

[00:29:59] Speaker 04:
But that is not a realistic explanation.

[00:30:02] Speaker 04:
It's the first time we've heard, for the first time in their red brief, it's very creative.

[00:30:06] Speaker 04:
It is not what anyone understood along the way.

[00:30:09] Speaker 04:
The examiner during prosecution.

[00:30:11] Speaker 05:
What's the issue in the parallel case, the so-called, a biomed?

[00:30:17] Speaker 05:
Is that right?

[00:30:18] Speaker 04:
Abiumed.

[00:30:18] Speaker 05:
Abiumed, the case that is apparently on appeal here.

[00:30:23] Speaker 05:
What's the issue in that case?

[00:30:24] Speaker 04:
There are other claim construction issues involved.

[00:30:28] Speaker 04:
And I believe it's that, but it's not the same terms.

[00:30:31] Speaker 04:
It's not the same patent.

[00:30:35] Speaker 04:
Going back to this notion of whether the lumen is a free space or is a dedicated device, the examiner and the rejection, and Mr. Hummel tried to get around it, but he couldn't.

[00:30:46] Speaker 04:
Mr. Judge Charonto caught on to it.

[00:30:49] Speaker 04:
If the lumen is in between the free space between the rotor blades, the rotor can't turn.

[00:30:55] Speaker 05:
Unless it's just space.

[00:30:57] Speaker 04:
Right.

[00:30:58] Speaker 04:
And the examiner here on APTX 174, and there are many instances of this,

[00:31:03] Speaker 04:
said the impeller would be impinged upon by guidewire lumen of the prior art when modified according to.

[00:31:10] Speaker 04:
The examiner knew it was a dedicated sleeve, if you will, for the guidewire to go into, because that's why the lumen cannot go between the free space between the rotor blades.

[00:31:21] Speaker 04:
The parties agreed with this.

[00:31:23] Speaker 04:
If the lumen is just open space, that makes no sense.

[00:31:27] Speaker 04:
It is a dedicated channel, a dedicated sleeve

[00:31:31] Speaker 04:
that through which the guide wire goes.

[00:31:33] Speaker 04:
That's why you cannot have the lumen go between the free space, but you can have the guide wire.

[00:31:40] Speaker 05:
Can the interior surface of the cannula constitute a lumen?

[00:31:45] Speaker 04:
The interior surface of the cannula is, and Patten refers to this, as the cannula lumen.

[00:31:53] Speaker 04:
That's because any tubular structure can have a lumen.

[00:31:58] Speaker 04:
A drinking straw has a lumen.

[00:32:00] Speaker 04:
The claims are talking about a guide mechanism with a lumen for the guide wire to go through.

[00:32:05] Speaker 04:
That is also a physical device.

[00:32:07] Speaker 04:
This room is not a lumen in the context of the guide mechanism lumen.

[00:32:14] Speaker 04:
And I know we're spending a lot of time talking about whether a lumen is a free space or it's a dedicated device.

[00:32:20] Speaker 04:
I really implore this court not to lose sight of the fact that all of this stemmed from two prosecution histories, one of them

[00:32:28] Speaker 04:
dealt with totally different claim terms that were restricting the placement of the lumen, not defining lumens.

[00:32:35] Speaker 04:
It was restricting whether the lumen, and by the way, if it's a free space, I don't even know what it means to be distal to something if it's just space.

[00:32:42] Speaker 04:
And Mr. Hummel, my friend over here, said that this patent talked repeatedly about the present invention.

[00:32:49] Speaker 04:
And he said, there's no disclosure anywhere.

[00:32:52] Speaker 04:
Two things on that.

[00:32:53] Speaker 04:
One, the district court never addressed, and they never presented anything like that.

[00:32:57] Speaker 04:
Number two, here at column 14 on APPX 136, column 14, lines 14 to 15, it says the cannula is equipped with a guide mechanism, 122.

[00:33:10] Speaker 04:
Equipped with, it can be anywhere on it.

[00:33:12] Speaker 04:
If you look at figure one of the patent, and this is on APPX 93.

[00:33:25] Speaker 04:
It shows, sticking out the distal end of the cannula, it shows guide wire 22 and that number 16 pointing to that thing outside the camera.

[00:33:33] Speaker 04:
That number 16, that's the guide mechanism.

[00:33:36] Speaker 04:
And it's pointing to it right there, outside on the end.

[00:33:40] Speaker 04:
And this notion that he said you can search high and low and you'll never find any disclosure, the spec makes clear that the guide mechanism, which includes the lumen, can be equipped to the cannula.

[00:33:53] Speaker 04:
Their accused device is equipped to the cannula.

[00:33:55] Speaker 04:
It's equipped right there on the end.

[00:33:57] Speaker 04:
There was no basis for the district court to impart two restrictions that are found nowhere in these claims by relying on family members dealing with different claim terms.

[00:34:08] Speaker 04:
And we would ask this court to reverse.

[00:34:10] Speaker 04:
I appreciate the time.

[00:34:20] Speaker 01:
Your Honor, I know it's unusual, but can I just make one point?

[00:34:24] Speaker 01:
And that is, if you, when you go look at figure one... Sir, I'm sorry, we're out of time.

[00:34:29] Speaker 03:
If you want to communicate with the court, do it by letter or something, all right?

[00:34:35] Speaker 01:
I apologize.

[00:34:36] Speaker 03:
It's okay.