Trials@uspto.gov IPR2014-00110, Paper No.45, IPR2014-
`00111, Paper No. 45 and IPR2014-00395,
`Paper No. 40
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`571-272-7822
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`
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`March 30, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MEDTRONIC, INC., MEDTRONIC VASCULAR, INC.
`and MEDTRONIC COREVALUE, LLC,
`Petitioner,
`
`v.
`
`TROY R. NORRED, M.D.,
`Patent Owner.
`____________
`
`Cases IPR2014-00110, IPR2014-00111
`and IPR2014-00395
`Patent 6,482,228
`____________
`
`Held: January 27, 2015
`____________
`
`
`
`BEFORE: MITCHELL G. WEATHERLY, BARRY L. GROSSMAN,
`and SHERIDAN SNEDDEN, Administrative Patent Judges.
`
`
`The above-entitled matter came on for hearing on Tuesday, January
`27, 2015, commencing at 2:03 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`
`
`00111, Paper No. 45 and IPR2014-00395,
`Paper No. 40
`
`
`571-272-7822
`
`
`
`
`March 30, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MEDTRONIC, INC., MEDTRONIC VASCULAR, INC.
`and MEDTRONIC COREVALUE, LLC,
`Petitioner,
`
`v.
`
`TROY R. NORRED, M.D.,
`Patent Owner.
`____________
`
`Cases IPR2014-00110, IPR2014-00111
`and IPR2014-00395
`Patent 6,482,228
`____________
`
`Held: January 27, 2015
`____________
`
`
`
`BEFORE: MITCHELL G. WEATHERLY, BARRY L. GROSSMAN,
`and SHERIDAN SNEDDEN, Administrative Patent Judges.
`
`
`The above-entitled matter came on for hearing on Tuesday, January
`27, 2015, commencing at 2:03 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`
`
`
`Cases IPR2014-00110, IPR2014-00111 and IPR2014-00395
`Patent 6,482,228
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`EVAN FINKEL, ESQUIRE
`
`
`Pillsbury Winthrop Shaw Pittman LLP
`
`
`725 South Figueroa Street
`
`
`Suite 2800
`
`
`Los Angeles, California 90017-5406
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JAMES J. KERNELL, ESQUIRE
`
`
`Erickson Kernell Derusseau & Kleypas, LLC
`
`
`8900 State Line Road
`
`
`Suite 500
`
`
`Leawood, Kansas 66206
`
`
`
`
`
`
`
`
`
`
` P R O C E E D I N G S
`
`- - - - -
`
`JUDGE WEATHERLY: Good afternoon, everyone. This is
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`a trial hearing for IPR2014-00110, IPR2014-00111 and
`
`IPR2014-00395 between Petitioner Medtronic, Inc., Medtronic
`
`Vascular, Inc. and Medtronic Corevalue, LLC on one side and the
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`owner of U.S. Patent Number 6,482,228, Troy R. Norred, M.D.
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`Just a few administrative matters before we begin. I'm
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`Judge Weatherly and with me are Judge Snedden on my right and
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`Judge Grossman on my left. Please identify -- during your
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`Patent 6,482,228
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`presentation, please identify by number any slides that you're
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`discussing to make our transcript a little easier for us to read and use.
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`As you know per our order, each party has one hour to
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`present their argument. Because Petitioner has the burden to show
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`unpatentability of the original claims, Petitioner will proceed first
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`followed by Patent Owner. Patent Owner may also discuss its
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`motions to amend in its time. Both parties may reserve rebuttal time.
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`However, Patent Owner may only use its time to rebut Petitioner's
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`argument related to the motion to amend or motions to amend, excuse
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`Before we begin the argument, Patent Owner may wish to
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`address some of its objections to Petitioner's demonstrative exhibits.
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`If so, the time needed to resolve those objections will count against
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`Patent Owner's one-hour time allotment.
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`At this time we'd like counsel to introduce yourselves and
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`whom you have with you, beginning with the Petitioner, please.
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`MR. FINKEL: Good morning, Your Honor. This is Evan
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`Finkel. I'm from Pillsbury Winthrop on behalf of Petitioner. Sitting
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`at counsel's table is my partner, Jack Barufka. And do you want to
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`know everybody here?
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`JUDGE WEATHERLY: Sure.
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`MR. FINKEL: Chad Hanson from Medtronic and Michael
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`Horikawa from my firm, Sean Edman from Medtronic and David
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`Ruschke from Medtronic.
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`Patent 6,482,228
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`JUDGE WEATHERLY: Thank you. Would you like to
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`reserve time?
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`MR. FINKEL: Yes. We'd like to reserve 25 minutes, Your
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`Honor.
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`JUDGE WEATHERLY: Thank you.
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`Patent Owner, would you like to address -- I'm sorry, Patent
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`Owner, if you wouldn't mind approaching -- approach and introduce
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`who you have with you.
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`MR. KERNELL: Yes, Your Honor. My name is Jim
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`Kernell and with me is David Marcus. We are here on behalf of Dr.
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`Troy Norred.
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`JUDGE WEATHERLY: Thank you. And who do you --
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`are these guests of yours behind you or --
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`MR. KERNELL: We have no guests.
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`JUDGE WEATHERLY: All right. Thank you very much.
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`While I have you up at the podium, would you like to
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`address any objections to Petitioner's demonstrative exhibits before
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`we begin?
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`MR. KERNELL: No, Your Honor.
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`JUDGE WEATHERLY: Thank you.
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`Then I'll call Petitioner to the podium to begin the
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`presentation.
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`MR. FINKEL: Can I ask one administrative question, Your
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`Honor?
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`JUDGE WEATHERLY: Yes.
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`Patent 6,482,228
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`MR. FINKEL: As far as timing, the clock or anything, give
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`me warning or --
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`JUDGE WEATHERLY: I'm going to keep the time myself.
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`We'll use the clock on the wall. So I understand you've reserved 25
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`minutes.
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`MR. FINKEL: That's correct, Your Honor.
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`May it please the Board, we'll be referring directly to the
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`slides that we submitted, so we'll start off with slide 1 presently on the
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`screen. And this just gives you the overview of the instituted grounds
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`that identify the three IPRs and the prior art asserted against each
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`claim in respect to each of the IPRs. So it's a basic slide for your use.
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`I would like to start off with the background of the '228
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`patent. The first slide you'll see, this is actually slide 2. So because
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`the title of the invention is percutaneous aortic valve replacement and
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`you'll see here it's a valve. It's not a stent. The title is directly
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`directed to the fact that it is a valve as the invention.
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`The next slide number 4 says, the '228 patent discloses four
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`valve embodiments, and the purpose of this slide is something to
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`identify the only four embodiments of a valve disclosed in the patent.
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`You'll see the umbrella valve, the cadaver valve, the conical valve and
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`the trihedral valve there on slide 4 and it also gives you the references
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`to the specification where those embodiments are discussed for easy
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`reference.
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`Cases IPR2014-00110, IPR2014-00111 and IPR2014-00395
`Patent 6,482,228
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`I'd like to then turn to the claim construction issues which
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`impact a lot of the other issues that are before the Board today. Ring
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`member not limited to pliable material. This is slide 6, Your Honor.
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`And the purpose here is that there's been a lot of discussion
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`about whether ring member should be limited to a pliable material.
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`That was the Patent Owner's proposed construction. The Board
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`disagreed and said it's not limited to pliable material.
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`The next slide, number 7, is here to show you that our
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`expert, Dr. Hill, agrees with the Board that the claims are not limited
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`to pliable material. It's not necessary for the invention and it also
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`specifies in paragraph 42, again on slide 7, that the term "pliable" is a
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`relative term and it alone does not inform one of ordinary skill in the
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`art as to its meaning. If anything, the addition of the term "pliable"
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`would make the claim less understandable. So this is just confirming
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`what the Board has already concluded to date.
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`The next claim construction issue we'd like to turn to, it is
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`the means for mounting and moving the membrane. And it's
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`important that we phrase it this way, because a -- I'm sorry, this is also
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`slide 8, Your Honor. It's important because, as you'll see from the
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`claim, there's a single means specified and it has two functions, a
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`mounting function and a moving function, and they're both important
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`in determining what structure would correspond with the means
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`specified in the claim.
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`And the next slide is number 10 here, Your Honor, and it
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`refers to the means for mounting and moving the membrane in the
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`conical valve embodiment that we previously saw in the original slide.
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`And you'll see that what is the means for mounting and
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`moving. You will see it is the fingers 68, which you can see there,
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`hingedly secured together by the ring 72 extending through the base,
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`and it specifically specifies here on the slide and each slide gives you
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`both the citations to the evidence as well as what we cited, the
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`information in our briefs.
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`And you'll see it's the fingers that move up and down. On
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`the left side of the slide, you will see the device or valve in the closed
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`configuration, the membrane is 75. And in the slide to the picture on
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`the right, you will see the membrane in the open configuration.
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`And this is important for a lot of reasons, which we'll
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`discuss, but you'll see that the device or valve has width to it, if you
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`will. There's an opening at the bottom that's always open. There's an
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`opening at the top referred to in the claims as the second spaced-apart
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`opening that opens and closes. So you have effectively a device with
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`two separate open ends with a separate open end -- second open end
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`opening and closing, and that's important in connection with the
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`means for mounting.
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`JUDGE WEATHERLY: So the first open end is always
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`open and the second open end is open when it's opened and closed
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`when it's closed.
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`MR. FINKEL: Exactly, Your Honor.
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`Patent 6,482,228
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`JUDGE WEATHERLY: All right.
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`MR. FINKEL: Thank you.
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`So now let's turn -- the next slide, slide 11, is merely to give
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`you the benefit of all -- you know, four figures for each of them. The
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`top shows you the closed position so you can see the other view and
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`the bottom shows you the open position, both -- the other view, just so
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`you could see that and benefit from that easily.
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`So now let's turn to the trihedral valve embodiment on slide
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`12. The trihedral valve embodiment is also very, very similar. You
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`will see that it has arms 84 instead of fingers of the four, but,
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`otherwise, it is essentially the same type of device. You have the
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`arms 84 hingedly attached to the ring. They move up and down.
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`Again, you have an open bottom end, a spaced-apart open top end that
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`closes and opens to allow blood flow to flow or not to flow, same
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`concept.
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`I'm going to skip -- I'm sorry, the next slide is slide 13 and it
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`really, again, shows you more pictures so you can have the benefit of
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`this. The top is the closed configuration. The bottom is the open
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`configuration, same concept, though. For purposes of claim
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`construction, we think this is very important.
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`So here is our proposed construction on slide 14, Your
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`Honor, of the means for mounting and means for moving. We would
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`respectfully submit that it should be fingers or arms for the two
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`embodiments hingedly attached or hingedly secured to the ring
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`Cases IPR2014-00110, IPR2014-00111 and IPR2014-00395
`Patent 6,482,228
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`member and a free end spaced therefrom and, of course, you get the
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`equivalents of the 112, 6, now 112(f).
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`JUDGE WEATHERLY: Let me ask you a question about
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`the free end spaced therefrom language, because this was a little bit of
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`a challenge for me originally, but -- so in what way is -- the free end
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`spaced therefrom is I presume the end that defines the second open --
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`MR. FINKEL: Yes, Your Honor.
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`JUDGE WEATHERLY: And spaced therefrom. When
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`these valves are closed, I suppose they're still spaced. They're spaced
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`therefrom. Help me understand exactly what you mean by that.
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`MR. FINKEL: Your Honor, let me maybe give you a little
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`insight to where that language came from, if I might.
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`JUDGE WEATHERLY: Sure.
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`MR. FINKEL: Claim 17 is directed to one of the
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`embodiments, the embodiment with the mounting means being the
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`arm, if you will, and the language comes directly from Claim 17,
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`where Claim 17 says, mounting means comprises at least one arm
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`having a first end hingedly secured to said ring member and the free
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`end spaced therefrom.
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`So the free end means it's free from the ring member. The
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`ring member is on the bottom. It's spaced apart. It's free. It's not
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`enclosed in the ring. It's not limited by any ring. And that's where we
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`got that language from, Your Honor.
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`JUDGE WEATHERLY: And what's your position about the
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`way in which Claim 17 narrows the scope of Claim 16?
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`MR. FINKEL: Well, I think Claim 17 narrows it to a
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`specific embodiment where they would call whatever arm structure
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`would be considered as opposed to a finger structure.
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`JUDGE WEATHERLY: So it can to the embodiment that's
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`shown in Figures 14 through 17, is that the --
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`MR. FINKEL: Let's go back, Your Honor. If you go back
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`to the trihedral valve and I'm, again, now at slide 12, you'll see that
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`refers to the arms 84. Now, one might say arms and fingers are the
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`same. I understand that. But as you know, I'm sure very well, you're
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`supposed to use the structures in the specification, plus equivalents
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`thereof. We wanted to be properly inclusive, so there were two
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`embodiments, arms and fingers, so we used both terms.
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`JUDGE WEATHERLY: Okay.
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`JUDGE SNEDDEN: So your argument is that in terms of
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`the structure for mounting, you need the arms or your fingers and not
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`just the hinged portion.
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`MR. FINKEL: That's absolutely correct, you need arms or
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`fingers. That is the structure.
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`JUDGE WEATHERLY: And that's because of the moving
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`function that's recited.
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`MR. FINKEL: The moving function and to space
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`something apart and hold it to move it between two positions, yes,
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`Your Honor.
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`JUDGE WEATHERLY: I'm not sure I really fully
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`understand your position about Claim 17 and what it covers or doesn't
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`cover and I don't know if you've really taken a position in terms of
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`whether it discloses that -- or claims or is limited in scope to the
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`embodiment that's shown in Figures 14 through 17 I think it is.
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`MR. FINKEL: Oh, I see the question, Your Honor.
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`JUDGE WEATHERLY: Or -- I mean, in other words, that's
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`the -- the specification refers to those structures as "arms," and I know
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`it's Claim 17.
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`MR. FINKEL: I see your point. I would think of arms and
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`fingers as equivalent in the context of this patent. I regard them just
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`as using different terminologies. And, In fact, the patent sometimes
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`uses little tweaks of the technology.
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`JUDGE WEATHERLY: So then in your view, Claim 17 is
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`reciting positive structure within the scope of the means-plus-function
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`element that's recited in Claim 16.
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`MR. FINKEL: Absolutely. It's reciting one part of the
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`structure, yes, Your Honor.
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`JUDGE WEATHERLY: That might actually cover more
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`than one embodiment that's shown in the specification.
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`MR. FINKEL: Correct.
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`JUDGE WEATHERLY: Okay. All right. Sorry for the
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`interruption.
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`MR. FINKEL: No, as often as you like, Your Honor.
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`Thank you so much.
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`So getting back to our slide 14 very quickly, we give the
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`reasons why we think this is the proper construction. It's consistent
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`with the conical valve embodiment, it's consistent with the trihedral
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`valve embodiment and it's consistent with Claim 17, so we believe it's
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`the proper construction.
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`Now, if you turn to slide 15, we recognize fully that the
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`Board in its original decision to grant the trial said, as reasonable at
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`this stage of the proceeding, a construction of the means for mounting
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`and moving the membrane, you defined it in terms of hingedly
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`secured and hingedly attached about a ring aperture. We fully
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`understand that in respect to what you said.
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`We would respectfully submit that the construction is a little
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`bit incomplete. Because as the Federal Circuit has said, the phrase
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`"hingedly connected" is not a structure, but it's, instead, considered to
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`be a function. And in the case of Beckson Marine that you'll see
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`there, they actually dealt with the phrase "hingedly connected." They
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`said it wasn't a structure.
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`And under 112, 6 they actually read into, if you will, that
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`means-plus-function limitation a lot of significant structure to require
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`a windowpane connected to a mounting flange using hinge lugs,
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`etcetera, etcetera, etcetera. So we would simply refer you to that.
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`JUDGE WEATHERLY: So I just want to make sure that
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`I'm understanding the basis for your proposed interpretation. I'll ask
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`that if the claim language were not to recite this moving function also,
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`but, instead, would be recited as simply a means for mounting said
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`first open end of said membrane about said ring aperture with said
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`second open end displaced therefrom, then it might refer simply to the
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`hinged structure, the hinge itself in connection, and it's the presence of
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`moving in the claim that brings the other parts of the structure into
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`play or am I not understanding correctly?
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`MR. FINKEL: No, I would say that the moving certainly
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`brings it in. I haven't really focused on whether a means for mounting
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`without also moving would not also require some form of arm.
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`Because the fact is that the way the claim is actually written,
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`it talks about the means for mounting said first open end of said
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`membrane about said ring aperture with said second open end
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`displaced therefrom, and I don't think a hinge at one end would
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`necessarily really perform that joint function with respect to the
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`second open end, so I'm not so sure that would actually be correct,
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`Your Honor.
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`JUDGE WEATHERLY: Okay.
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`JUDGE GROSSMAN: Mr. Finkel.
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`MR. FINKEL: Yes, sir.
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`JUDGE GROSSMAN: If you go back in your slide where
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`you're proposing a construction for the means for mounting.
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`MR. FINKEL: Yes, sir.
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`JUDGE GROSSMAN: How does your use of hingedly
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`attached or hingedly secured overcome the problem that you just
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`identified in the Federal Circuit case law?
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`MR. FINKEL: Because it adds the structure of the fingers
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`or arms. And as you well know, Your Honor, when you do a
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`means-plus-function claim the first thing is you identify the function,
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`you look at the function and you may have to define the function
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`somewhere.
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`And as we understood what you had done the first time
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`around, so to speak, was to define the function, so we used what you
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`defined as the function. We didn't have a problem with that at all, and
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`we simply added the structure per the case law, plus 112, 6, the In re
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`Donaldson case that deals with how you interpret the means plus
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`function in your courtroom and 112, 6.
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`JUDGE SNEDDEN: So the use of the language "hingedly
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`secured," what you're saying is that's different from secured with a
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`hinge, I mean, in terms of -- hinge to me kind of connotes some kind
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`of structure.
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`MR. FINKEL: Well, the case would say it doesn't and I
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`don't believe that it connotes the structure in the patent, which is really
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`under 112, 6. You have to look at what the structure is in the patent
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`that performs the function and the structure is the fingers and arms.
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`The structure is not some other amorphus type of hinge. That would
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`be our position.
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`JUDGE SNEDDEN: So how are the fingers operating with
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`the hinge structure, is it then -- well, the fingers are hinges to be
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`attached.
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`MR. FINKEL: Correct. The way the embodiments are
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`shown in the patent, there is the arm that's hingedly secured to the ring
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`member and then at the other end, the top end or the second surface,
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`it's also attached but not hingedly attached and it moves it up and
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`down.
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`So now I'd like to turn to slide 18. I skipped over a few
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`slides. I was going to try to cut back a little bit, Your Honor, if that's
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`okay.
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`The next claim construction we would like to address is
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`means for maintaining, which is for Independent Claims 20 and
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`Dependent Claim 19, and that was slide 18. It's just the title slide.
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`So here we look at slide 19. If I misspoke before, I
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`apologize on the slides. And there you see the actual claim language.
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`So you can see exactly what -- it's the same in 19 and the same in 20,
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`19 being a dependent claim.
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`Here is the '228 patent and, in fact, this is slide 20 and it
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`discloses two types of rods, rods that are part of the stent system 28
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`and connecting rods 104 that are part of the valve. The Board
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`obviously knows this, because it recited it in its opinion, the decision.
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`And the Board's construction rejected the Patent Owner's argument
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`with respect to the means for maintaining.
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`The Patent Owner had tried to argue that the means for
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`maintaining was essentially the stent system alone and we had argued,
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`in fact, Your Honor, that it wasn't connecting rods 104 alone. And the
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`Board decided that the proper construction was its rods 104
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`interacting with the stent 28 -- this is slide 21 -- that are the structures
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`corresponding to the means for maintaining.
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`We would just point out, Your Honor, that the patent itself is
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`really directed to a valve, as its title suggests, as all the embodiments
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`suggest. The claims are all directed to a valve. As they say, every
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`claim begins aortic valve and the stent is a separate structure. You
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`know, you've seen language like valve stent combination. That's a
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`combination of two elements. The claims are really directed to the
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`valve alone.
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`So we would submit that our construction would be more
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`accurate saying it's the connecting rods 104, but at a minimum we
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`would suggest that it's connecting rods 104 for interacting with a stent
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`as opposed to the stent itself being affirmative limitations in the claim.
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`JUDGE SNEDDEN: Are there any embodiments in the
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`specification, which you have a valve that's not interacting with a
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`stent?
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`MR. FINKEL: Well, there are many embodiments where
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`it's not interacting, yes, but it's for interacting. For example, the stent
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`is only shown in the early figures. And then what the subsequent
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`embodiments show you is valves for interacting with a stent, but they
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`don't show you the stent. They say it's for interacting with the stent
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`and they say you could use a stent that's shown previously.
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`They do say that, but those other embodiments never show
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`you a stent as part of the invention. They say it's the valve for
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`interacting with the stent and that's why I suggested that there might
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`an appropriate, in your discretion, of course --
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`JUDGE SNEDDEN: So when you say means for
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`maintaining, the way I understand your argument is that it's
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`maintaining the valve on the stent. Is that what you're saying?
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`Because the claim actually -- I'm looking at Claim 19. It says, means
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`for maintaining said ring member in said seat about the aortic wall.
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`MR. FINKEL: Yes, Your Honor.
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`JUDGE SNEDDEN: And so my question, then, would be,
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`how does it maintain in said seat about the aortic wall without the
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`stent?
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`MR. FINKEL: I would suggest that the way it's going to do
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`it, the way the valve is constructed to do that, is to use the connecting
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`arms 104 for -- connecting rod 104, for example. That is the means
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`that's going to be used. You're right, until we get the stent it's not
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`maintained "in the aorta," but then, you know, that deals with the use
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`of the device once it's implemented.
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`You know, gas is for running a car, but the car is not
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`necessarily part of a claim. You know, means for running the --
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`means for propelling a car may be the gas in the context of a claim on
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`a chemical compound. The car is not part of the claim, but it is the
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`means that's going to be used in the car. That's the kind of concept
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`that I'm trying to suggest.
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`JUDGE WEATHERLY: So is it sort of implied in your
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`position, as I'm hearing it, is that the phrasing in the preamble of all
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`the claims being directed to "an aortic valve" has some sort of
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`preclusive effect such that it doesn't refer to structures that are part of
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`the stent, but only refers to structures that are part of the valve?
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`MR. FINKEL: I would respectfully submit that the claim is
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`not intended as written originally to cover or to apply to a stent
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`system. It was intended, as the whole patent is written, here's a stent
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`and, by the way, now we talk about the invention, here are the four
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`embodiments of a valve and they go into great detail about the valve.
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`So, yes, I would suggest that that is intended to being what follows is
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`all related to the valve and not to a stent.
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`JUDGE WEATHERLY: But these means for maintaining
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`it, if they include the -- for example rods 104, there's no argument
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`from you that rods 104 are -- I mean, they're not part of a valve.
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`MR. FINKEL: They actually are depicted as being part of
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`the valve.
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`JUDGE WEATHERLY: I understand, but they don't
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`perform a function of a valve. They don't affect the flow of blood
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`through the structure at all, correct?
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`MR. FINKEL: Correct, but I would submit that that is what
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`the patent describes as the valve.
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`JUDGE WEATHERLY: So what's claimed from your
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`perspective, then, is a valve, plus some structures for interacting with
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`a stent.
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`MR. FINKEL: Yes. The valve structure, yes, as they define
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`the valve structure.
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`JUDGE WEATHERLY: But not the stent itself.
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`MR. FINKEL: Correct. But as I said, I want to be clear that
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`if the Board was going to utilize the stent in defining the limitation, I
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`would submit that it should be the rod for interacting with. It may
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`turn out to be --
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`JUDGE WEATHERLY: And if we were to disagree about
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`that and say that the claim actually recites the stent system as well in
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`the form of the means for maintaining, how that would affect --
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`MR. FINKEL: I don't think it affects the prior art or
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`anything we've been discussing.
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`JUDGE SNEDDEN: Can we speak to this with reference to
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`one of the figures? Just pick one of the embodiments and then show
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`me what you think would be the means for maintaining the valve
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`structure.
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`MR. FINKEL: Sure, Your Honor. If you turn in the patent
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`to the embodiment -- and let's keep -- let's look at the embodiment in
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`Figure 18 of the patent, Your Honor. It's Exhibit 1001 in each of the
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`proceedings. They're connecting rods 104 would be the example.
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`In the prior figures, you will see a discussion of -- let's see, if
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`you look at Figure 8, the embodiment there, you will see rod --
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`connecting rods 56. That would be another example and I actually
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`have a little chart I prepared with respect to this.
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`So you'll see that in Figure 8 it's connecting rods 56. I
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`believe that you will find that for the next embodiment they talk about
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`using the same structures as the prior one. I think there's connecting
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`rods 58. I'm sorry, this embodiment talks about using the other
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`embodiment as well. It says, the structures can be similar, is the
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`phraseology in the patent. So that's what I'm referring to, Your
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`Honor.
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`JUDGE SNEDDEN: Okay. Thank you.
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`JUDGE GROSSMAN: Mr. Finkel, one more question about
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`your means for maintaining. That functional recitation in Claim 20 is
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`not just means for maintaining. It is means for maintaining the ring
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`member in a seated position.
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`MR. FINKEL: Yes, Your Honor.
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`JUDGE GROSSMAN: I just want to be clear that I
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`understand your position. You would like us to say that those rods
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`104 in Figure 18, for example, are all that you need to maintain the
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`valve in a seated position about the aortic wall and that -- is it your
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`position that it will function just fine without that stent?
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`MR. FINKEL: No, Your Honor. It would be freestanding
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`in that case.
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`JUDGE GROSSMAN: Would it be maintained in a seated
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`position without the stent?
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`MR. FINKEL: It needs to be connected up to, as I said, for
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`connecting up to a stent.
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`JUDGE GROSSMAN: We can only look to a structure
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`that's disclosed to interpret that means plus function.
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`MR. FINKEL: Absolutely, Your Honor.
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`JUDGE GROSSMAN: Is there any other structure that's
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`disclosed other than a stent for maintaining?
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`MR. FINKEL: You mean to go with the connecting rods
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`you mean?
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`JUDGE GROSSMAN: Yes.
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`MR. FINKEL: There are other references to -- for example,
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`I think it's -- I have to look at the number, but I believe it's -- if you
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`look at column 5 of the patent at line -- about 48, it talks about
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`connecting rod 80 in Figure 10, but not shown in that figure, so let's
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`look at Figure 10. There's a connecting rod there.
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`So basically in the last embodiment it's 104. In the
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`embodiment regarding the conical valve, it's 80. In the embodiment --
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`JUDGE GROSSMAN: Would Claim 20 cover that conical
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`valve in the other embodiments? Because Claim 20 talks about a
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`tissue valve and most of the discussion and materials that have been
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`submitted focus on Claim 20 on Figure 18, which is the tissue valve.
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`MR. FINKEL: That's correct. I'm sorry, I misunderstood
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`your question.
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`JUDGE GROSSMAN: Claim 20 is the means --
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`MR. FINKEL: In Claim 20 is 104.
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`JUDGE GROSSMAN: So that would be the only disclosure
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`would be the Figure 18 embodiment for Claim 20?
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`MR. FINKEL: Correct. In fact, Claim 20 only -- for a
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`tissue valve, the only embodiment is disclosed as 18 and 19. It's one
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`paragraph at the end of the patent, that's correct.
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`JUDGE GROSSMAN: So in trying to interpret the means
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`for m
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