BSC USP 8,142,413
`Exhibit 1035
`
`Page 1 of 58
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`CASE 0:13-cv-01172-JRT-SER Document 113 Filed 02/21/14 Page 1 of 58
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`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`
`
`
`
`0:13-cv-01172-JRT-SER
`
`
`
`JOINT CLAIM CONSTRUCTION
`STATEMENT
`
`
`
`VASCULAR SOLUTIONS, INC.,
`
`Plaintiff,
`
`v.
`
`BOSTON SCIENTIFIC CORPORATION,
`
`Defendant.
`
`BOSTON SCIENTIFIC CORPORATION
`and BOSTON SCIENTIFIC SCIMED, INC.,
`
`
`
`Counter-Plaintiffs,
`
`v.
`
`VASCULAR SOLUTIONS, INC.,
`
`Counter-Defendant.
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`PLEASE TAKE NOTICE that the parties to this action, Plaintiff and
`
`Counterclaim-Defendant Vascular Solutions, Inc. (“VSI”), and Defendant and
`
`Counter-Claimants Boston Scientific Corporation and Boston Scientific Scimed, Inc.
`
`(collectively “BSC”) hereby serve their Joint Claim Construction Statement.
`
`Pursuant to the Scheduling Order, set forth in the attached exhibits regarding VSI’s
`
`Root Patents (Exhibit A), and BSC’s Adams patent (Exhibit B), are the claim terms
`
`(and their corresponding claims) that the Parties have identified as in dispute and
`
`which require construction by the Court, and further contains each Party’s proposed
`
`construction for the disputed claim terms, along with an identification of all
`
`
`
`1
`
`

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`Page 2 of 58
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`CASE 0:13-cv-01172-JRT-SER Document 113 Filed 02/21/14 Page 2 of 58
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`references from the specification and prosecution history to support that construction
`
`and any extrinsic evidence known to the Party on which it intends to rely either in
`
`support of its proposed construction or to oppose the other Party’s proposed
`
`construction.
`
`The parties were unable to reach agreement on the construction of any claim
`
`term, phrase, or clause proposed for construction by the Court. While all parties
`
`believe a claim construction hearing is necessary, no party intends to call witnesses
`
`to provide live testimony, unless the Court believes such testimony would be of
`
`DORSEY & WHITNEY LLP
`
`
`
`s/Heather D. Redmond
`J. Thomas Vitt (# 0183817)
`Heather D. Redmond (# 0313233)
`Shannon L. Bjorklund (# 0389932)
`Forrest Tahdooahnippah (# 0391459)
`50 South Sixth Street, Suite 1500
`Minneapolis, MN 55402
`Tel: (612) 340-2600
`Fax: (612) 340-8856
`Email: vitt.thomas@dorsey.com
`Email: redmond.heather@dorsey.com
`Email: bjorklund.shannon@dorsey.com
`Email: tahdooahnippah.f@dorsey.com
`
`Attorneys for Plaintiff Vascular Solutions,
`Inc.
`
`assistance.
`
`BY:
`
`
`
`Dated: February 21, 2014.
`
`
`
`2
`
`
`
`

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`Page 3 of 58
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`CASE 0:13-cv-01172-JRT-SER Document 113 Filed 02/21/14 Page 3 of 58
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`ARNOLD & PORTER LLP
`
`
`
`/s/ Tara Williamson
`Matthew Wolf (admitted pro hac vice)
`Edward Han (admitted pro hac vice)
`John Nilsson (admitted pro hac vice)
`Tara Williamson (admitted pro hac vice)
`
`555 Twelfth Street, N.W.
`Washington, DC 20004
`Tel: (202) 942-5000
`Fax: (202) 942-5999
`Email: matthew.wolf@aporter.com
`Email: edward.han@aporter.com
`Email: john.nilsson@aporter.com
`
`Jeffer Ali (# 0247947)
`Sarah M. Stensland (# 0387051)
`CARLSON, CASPERS, VANDENBURGH,
`LINDQUIST & SCHUMAN, P.A.
`225 South Sixth Street, Suite 4200
`Minneapolis, MN 55402
`Tel: (612) 436-9600
`Fax: (612) 436-9605
`Email: jali@carlsoncaspers.com
`Email: sstensland@carlsoncaspers.com
`
`Attorneys for Defendant and Counter-
`Plaintiffs Boston Scientific Corporation and
`Boston Scientific Scimed, Inc.
`
`
`
`Dated: February 21, 2014
`
`
`
`3
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`

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`Page 4 of 58
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`CASE 0:13-cv-01172-JRT-SER Document 113 Filed 02/21/14 Page 4 of 58
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`EXHIBIT A
`
`
`U.S. Patent Nos. 8,048,032 (“‘032 patent”); 8,142,413 (“‘413 Patent”); 8,292,850
`(“‘850 Patent”) (collectively, the “VSI Patents”):
`
`
`I. The Parties’ Constructions of Disputed Claim Terms in VSI Patents:
`
`
`Disputed Claim
`Terms
`"a substantially
`rigid portion ...
`defining a rail
`structure without a
`lumen"
`/
`"a substantially
`rigid portion ...
`defining a structure
`without a lumen"
`
`
`Appears in
`Claims
`‘032 patent
`cls. 1, 11
`
`‘850 patent
`cl. 1
`
`‘413 patent
`cl. 1
`
`‘850 patent
`cl. 12
`
`VSI’s Proposed
`Construction
`The phrase “without a
`lumen” modifies the
`“rail structure” or
`“structure,” not the
`“substantially rigid
`portion” in these claim
`limitations, and the
`substantially rigid
`portion and rail
`structure are not
`coextensive.
`
`BSC’s Proposed
`Construction
`BSC proposes that no
`construction is necessary
`for the claim term
`“defining” within the
`claim phrases “a
`substantially rigid
`portion ... defining a rail
`structure without a
`lumen” and "a
`substantially rigid
`portion ... defining a
`structure without a
`lumen.” It should be
`construed in accordance
`with its plain and
`ordinary meaning,
`which is ‘coextensive
`with and describes the
`exact boundaries of’
`
`
`
`
`a. VSI’s Supporting Intrinsic and Extrinsic Evidence
`
`VSI proposes that the phrase “without a lumen” modifies the “rail structure” or
`
`“structure,” not the “substantially rigid portion” in these claim limitations, and the
`
`substantially rigid portion and rail structure are not coextensive.
`
`i. Intrinsic Evidence:
`
`In support of VSI’s construction, VSI reserves the right to rely upon the entire
`
`intrinsic record to establish the meaning of the claim limitations in the context of the
`
`
`
`1
`
`

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`patented invention. VSI also reserves the right to rely on BSC’s proposed intrinsic
`
`evidence. The specific intrinsic evidence on which VSI may rely includes, but is not
`
`limited to:
`
`The claims of VSI’s patents, including but not limited to:
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`‘032 patent, claims 1, 11
`
`‘032 patent, claim 9 (“substantially rigid portion includes from distal to
`proximal direction, a cross-sectional shape having a full circumference
`portion, a hemi-cylindrical portion and an arcuate portion”).
`
`‘032 patent, claim 13 (“the substantially rigid portion further includes a
`partially cylindrical portion defining an opening extending for a distance
`along a side thereof defined transverse to a longitudinal axis that is adapted
`to receive an interventional cardiology device passed through continuous
`lumen of the guide catheter . . .”).
`
`‘032 patent, claim 18 (“substantially rigid portion includes, starting at a
`from distal to proximal direction, a cross-sectional shape having a full
`circumference portion, a hemicylindrical portion and an arcuate portion”).
`
`‘413 patent, claim 1
`
`‘413 patent, claim 4 (“selecting the substantially rigid portion of the coaxial
`guide catheter such that it comprises a cylindrical portion and a partially
`cylindrical portion defining an opening along a side thereof”).
`
`‘413 patent, claim 14 (“further comprising extending the interventional
`cardiology device through the substantially rigid portion from proximal to
`distal through a cross-sectional shape having an arcuate portion, a
`hemicylindrical portion and a full circumference portion”).
`
`‘850 patent, claims 1, 12
`
`‘850 patent, claim 9 (“substantially rigid portion includes from distal to
`proximal direction, a cross-sectional shape having a full circumference
`portion, a hemicylindrical portion and an arcuate portion”).
`
`‘850 patent, claim 14 (“substantially rigid portion further includes a
`partially cylindrical portion defining an opening extending for a distance
`along a side thereof defined transverse to a longitudinal axis that is adapted
`
`
`
`2
`
`

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`to receive an interventional cardiology device passed through the
`continuous lumen of the guide catheter . . . the opening extending
`substantially along at least a portion of a length of the substantially rigid
`portion”).
`
`•
`
`‘850 patent, claim 19 (“substantially rigid portion includes, from distal to
`proximal, a cross-sectional shape having a full circumference portion, a
`hemicylindrical portion and an arcuate portion”).
`
`The VSI Patents’ specifications,1 including but not limited to:
`
`•
`
`•
`
`•
`
`•
`
`‘032 patent, col. 3:49-51 (“The rigid portion may include a cutout portion
`and a full circumference portion.”). See also, col. 3:46-61.
`
`‘032 patent, col. 6:38-40 (“Rigid portion 20 includes first full
`circumference portion 34, hemicylindrical portion 36, arcuate portion 38,
`and second full circumference portion 40.”).
`
`‘032 patent, col. 7:19-23 (“Rigid portion 20 may extend for approximately
`ninety cm and includes first full circumference portion 34 (approximately
`0.25 cm), hemicylindrical portion 36 (approximately seventy five cm),
`arcuate portion (approximately fifteen cm) and second full circumference
`portion (approximately three cm).”).
`
`‘032 patent, col. 8:34-42 (“In an embodiment depicted in FIGS. 12-15,
`rigid portion includes full circumference portion 80, greater than 180°
`portion 82, and less than 180° portion 84. Greater than 180° portion 82
`may, for example, include structure forming approximately 300° of the
`circumference of the cylinder. . . . Greater than 180° portion 82 may extend
`approximately 22-25 inches.”).
`
`•
`
`‘032 patent, Figs. 5-6, 12-15
`
`ii. Extrinsic Evidence:
`
`
`
`
`
`•
`
`VSI may rely on the testimony of Howard Root, an inventor of the
`inventions disclosed in the Root Patents, among numerous other patented
`inventions, and an expert in the relevant field. VSI believes that Mr. Root’s
`testimony can be adequately presented by declaration; however, VSI
`
`1 The specifications of the three VSI Patents are identical in substance. VSI has
`simplified its identifications by citing specific column and line numbers with respect to
`the ‘032 patent only.
`
`
`
`3
`
`

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`reserves the right to call Mr. Root to testify live in the event the Court
`wishes to hear live testimony. If called to testify, Mr. Root may offer an
`opinion regarding how a person of ordinary skill in the art at the time of the
`invention would have understood this limitation, in light of the intrinsic
`evidence and supported by extrinsic evidence, consistent with his previous
`declarations filed in this case.
`
`b. BSC’s Supporting Intrinsic and Extrinsic Evidence
`
`
`
`BSC proposes that no construction is necessary for the claim term “defining”
`
`within the claim phrases “a substantially rigid portion ... defining a rail structure without
`
`a lumen" and "a substantially rigid portion ... defining a structure without a lumen.” The
`
`term “defining” in both contexts should be construed in accordance with its plain and
`
`ordinary meaning which is ‘coextensive with and describes the exact boundaries of.’
`
`i. Intrinsic Evidence:
`
`To support BSC’s proposed construction for this claim term, BSC relies upon,
`
`among other things, the totality of the intrinsic record to demonstrate that the plain and
`
`ordinary meaning should control. Specifically, BSC may rely upon:
`
`Prior art references cited in the intrinsic record of the VSI Patents, including but not
`limited to:
`− U.S. Patent No. 6,638,268 Niazi
`− U.S. Patent No. 2005/0004523 Osborne
`− U.S. Patent No. 5,776,141 Klein
`− U.S. Pub. No. 2003/0195546 Solar
`
`
`The claims of the ‘032 patent, including:
`
`
`− Cls. 1, 2, 3, 4, 10, 13, 22
`
`
`The ‘032 patent specification, including:
`
`
`− “cutout portion 44 defines a concave track 52 along its length.” (col. 6 ll. 63-4.)
`− “connector hub 88 generally includes connector portion 92, grip portion 94 and
`
`
`
`4
`
`

`
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`joining portion 96. Connector hub 88 defines funnel portion 98 therein.” (col. 8
`ll. 60-61.)
`− “Interrupted hub 108 defines an opening 116, along a side thereof. Interrupted
`hub 108 may be substantially C-shaped or U-shaped in cross section. Opening
`116 is sized so that tapered inner catheter 14 may be passed readily therethrough
`. . .” (col. 9 ll. 7-11.)
`− Figs. 1-22
`− Brief Description of the Drawings
`
`The Prosecution History of the ‘032 patent and all references cited therein, including
`without limitation:
`
`
`− July 28, 2011 Reasons for Allowance
`− July 28, 2011 Examiner’s Amendment Communication
`− July 28, 2011 Allowability Notice
`− February 22, 2011 Request for Continued Examination (RCE)
`− February 22, 2011 Amendment Submitted/Entered with Filing of CPA/RCE
`− December 19, 2010 Final Rejection
`− October 8, 2010 Response after Non-Final Action
`− July 30, 2010 Non-Final Rejection
`− June 28, 2010 Request for Continued Examination (RCE)
`− June 28, 2010 Amendment Submitted/Entered with Filing of 2010 CPA/RCE
`− May 24, 2010 Final Rejection
`− February 19, 2010 Response after Non-Final Action
`− November 18, 2009 Non-Final Rejection
`− September 10, 2009 Request for Continued Examination (RCE)
`− September 10, 2009 Amendment Submitted/Entered with Filing of
`− 2009 CPA/RCE
`− June 8, 2009 Final Rejection
`− April 6, 2009 Response after Non-Final Action
`− December 4, 2008 Non-Final Rejection
`− October 1, 2008 Response to Election / Restriction Filed
`− July 7, 2008 Restriction/Election Requirement 2008
`
`
`
`
`
`
`
`The claims of the ‘850 patent, including:
`
`− Cls. 1, 2, 3, 4, 12, 14
`
`
`5
`
`

`
`Page 9 of 58
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`The ‘850 patent specification, including:
`
`
`− “Cutout portion 44 defines a concave track 52 along its length. Concave track 52
`is continuous with lumen 50.” (col. 7 ll.7-8.)
`− “Connector hub 88 generally includes connector portion 92, grip portion 94 and
`joining portion 96. Connector hub 88 defines funnel portion 98 therein.” (col. 9
`ll. 5-7.)
`− “Interrupted hub 108 defines an opening 116, along a side thereof.” (col. 9 ll. 21-
`22.)
`− “The location where hemi-tube portion 110 and braided portion 112 join defines
`the entire circumference of a cylinder.” (col. 9 ll. 35-36.)
`− Figs. 1-22
`− Brief Description of the Drawings
`
`The prosecution history of the ‘850 patent, and all references cited therein, including
`without limitation:
`
`
`− October 23, 2012 Certificate of Correction
`− August 30, 2012 Applicant Summary of Interview with Examiner
`− August 22, 2012 Notice of Allowability
`− August 22, 2012 Reasons for Allowance
`− August 22, 2012 Examiner’s Amendment Communication
`− January 26, 2012 Application Claims
`
`
`
`The claims of the ‘413 patent, including:
`
`
`− Cls. 1, 4, 10
`
`The ‘413 patent specification, including:
`
`
`− “Cutout portion 44 defines a concave track 52 along its length. Concave track 52
`is continuous with lumen 50.” (col. 7 ll. 1-2.)
`− “Connector hub 88 generally includes connector portion 92, grip portion 94 and
`joining portion 96. Connector hub 88 defines funnel portion 98 therein.”
`− Fig. 19
`− “Interrupted hub 108 defines an opening 116, along a side thereof.” (col. 9 ll.
`14-15.)
`− “The location where hemi-tube portion 110 and braided portion 112 join defines
`the entire circumference of a cylinder.” (col. 9 ll. 29-30.)
`− Figs. 1-22
`
`6
`
`
`
`
`
`

`
`Page 10 of 58
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`CASE 0:13-cv-01172-JRT-SER Document 113 Filed 02/21/14 Page 10 of 58
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`− Brief Description of the Drawings
`
`Prosecution History of the ‘413 patent and all references cited therein, including but
`not limited to:
`
`− February 20, 2012 Notice of Allowability
`− February 20, 2012 Examiner’s Amendment
`− February 20, 2012 Reasons for Allowance
`− November 1, 2011 Applicant Amendment Requesting Reconsideration after
`Non-Final Rejection
`− November 1, 2011 Applicant Arguments/Remarks Made in an Amendment
`− August 1, 2011 Office Action Non-Final Rejection
`− September 8, 2010 Response to Notice to File Corrected Application Papers
`− July 8, 2010 Notice to File Corrected Application Papers
`− June 28, 2010 Preliminary Amendment
`− June 28, 2010 Specification, Claims, Abstract
`
`ii. Extrinsic Evidence:
`
`
`Dictionary definitions for the term “defining”:
`
`
`− New Webster’s Dictionary, 1994.
`
`− The American Heritage Dictionary, 3rd Edition, 1994.
`
`− The American Heritage College Dictionary, 4th Edition, 1994.
`
`− Webster’s Encyclopedic Unabridged Dictionary of the English Language, 1994.
`
`− The Merriam-Webster Dictionary, 1997
`
`− The Merriam-Webster Dictionary, 2004.
`
`− Random House Webster’s College Dictionary, 1995.
`
`− The Concise Oxford Dictionary, 10th Edition, 1999.
`
`− Merriam-Webster’s Collegiate Dictionary, 1998.
`
`− Webster’s II New College Dictionary, 1995.
`
`− Webster’s New World Dictionary, 4th Edition, 2003.
`
`7
`
`
`
`
`
`
`
`
`
`

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`CASE 0:13-cv-01172-JRT-SER Document 113 Filed 02/21/14 Page 11 of 58
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`
`− Random House Webster’s College Dictionary, 1996.
`
`− Random House Compact Unabridged Dictionary, Special 2nd Edition, 1996.
`
`− Random House Compact Unabridged Dictionary, Special 2nd Edition, 1996.
`
`− Merriam-Webster’s Collegiate Dictionary, 10th Edition, 2000.
`
`− The Merriam-Webster Dictionary, Home and Office Edition, 1995.
`
`
`
`
`BSC reserves the right to rely on the expert testimony of Jon McIntyre, Vice
`
`President of Product Development at Bridgemedica, LLC, regarding how a person of
`
`ordinary skill in the art at the time of the claimed invention would have construed the
`
`claim term “defining” within the claim phrases “"a substantially rigid portion ... defining
`
`a rail structure without a lumen" and "a substantially rigid portion ... defining a structure
`
`without a lumen"” in view of the totality of the intrinsic record. Mr. McIntyre has 26
`
`years of experience with leadership, project management, and engineering in the medical
`
`device industry. He has been involved in numerous PMA and 510k product launches,
`
`holds 9 issued patents and 35 pending patents, and has co-authored numerous
`
`publications and abstracts in the field.
`
`BSC additionally reserves the right to rely on the intrinsic or extrinsic evidence
`
`identified by VSI.
`
`
`
`8
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`

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`
`Disputed Claim
`Term
`“rail structure”
`
`“rail”
`
`Appears in
`Claims
`‘032 patent
`cls. 1, 11
`
`‘850 patent
`cl. 1
`
`‘413 patent
`cl. 1
`
`‘850 patent
`cl. 12
`
`
`
`VSI’s Proposed
`Construction
`The “rail structure” or
`“rail” [structure] includes
`structures that are circular
`and/or tubular.
`
`
`BSC’s Proposed
`Construction
`BSC proposes that the
`proper construction of
`the term “rail structure”
`is, at a minimum, a
`structure that is
`noncircular and non-
`tubular.2
`
`
`
`
`a. VSI’s Supporting Intrinsic and Extrinsic Evidence
`
`VSI proposes that the “rail structure” or “rail” [structure] includes structures that
`
`are circular and/or tubular.
`
`i. Intrinsic Evidence:
`
`
`In support of VSI’s construction, VSI relies upon the entire intrinsic record to
`
`establish the meaning of the claim limitations in the context of the patented invention.
`
`VSI also reserves the right to rely on BSC’s proposed intrinsic evidence. The specific
`
`intrinsic evidence on which VSI may rely includes, but is not limited to:
`
`
`2BSC does not believe that the claim term “rail structure” can be construed due to lack of
`written description, indefiniteness, nonenablement, inoperability, and impermissible
`broadening . BSC proposes this construction in the event that the Court determines that
`this claim term can and should be construed.
`
`
`
`
`9
`
`

`
`Page 13 of 58
`
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`
`The claims of VSI’s patents, including but not limited to:
`
`• ‘032 patent, claims 1, 11
`
`• ‘413 patent, claim 1
`
`• ‘850 patent, claims 1, 12
`
`The VSI Patents’ specifications, including but not limited to:
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`‘032 patent, col. 3:47-48 (“Preferably, the rigid portion may be
`advantageously formed from a stainless steel or Nitinol tube”).
`
`‘032 patent, col. 6:35-37 (“Rigid portion 20 may be formed from a
`hypotube or a section of stainless steel or Nitinol tubing.”).
`
`‘032 patent, col. 7:24-25 (“Rigid portion 20 may be formed from a stainless
`steel or Nitinol hypo tube.”).
`
`
`
`ii. Extrinsic Evidence:
`
`U.S. Patent No. 4,762,129. E.g., at Fig. 2.
`
`U.S. Patent No. 4,928,693. E.g., references to Bonzel ‘129 patent.
`
`U.S. Patent No. 5,407,432. E.g., Figs. 3, 4.
`
`U.S. Patent No. 5,728,067. E.g., at Figs. 2, 4; col. 4:67 – col. 5:27.
`
`U.S. Patent No. 5,527,292. E.g., at Fig. 2; col. 6:1-2; col. 6:15-17; col. 8:
`24-25.
`
`VSI may rely on the testimony of Howard Root, an inventor of the
`inventions disclosed in the Root Patents, among numerous other patented
`inventions, and an expert in the relevant field. VSI believes that Mr. Root’s
`testimony can be adequately presented by declaration; however, VSI
`reserves the right to call Mr. Root to testify live in the event the Court
`wishes to hear live testimony. Mr. Root may offer an opinion regarding
`how a person of ordinary skill in the art at the time of the invention would
`have understood this limitation, in light of the intrinsic evidence and
`supported by extrinsic evidence, consistent with his previous declarations
`filed in this case. Mr. Root may testify that rail structures in the field of
`this invention can be, and very often are, circular, cylindrical, or tubular.
`
`
`
`10
`
`

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`Page 14 of 58
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`CASE 0:13-cv-01172-JRT-SER Document 113 Filed 02/21/14 Page 14 of 58
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`Mr. Root may also provide background testimony regarding monorail
`construction.
`
`
`b. BSC’s Supporting Intrinsic and Extrinsic Evidence
`
`BSC proposes that the proper construction of the term “rail structure” is, at a
`
`minimum, a structure that is noncircular and non-tubular.3
`
`i. Intrinsic Evidence:
`
`To support BSC’s proposed construction for this claim term, BSC relies upon,
`
`among other things, the totality of the intrinsic record to demonstrate that the term “rail
`
`structure” must be construed to mean, at a minimum, a structure that is noncircular and
`
`non-tubular. BSC also reserves the right to rely upon evidence within the intrinsic
`
`record, including:
`
`Prior art references cited in the intrinsic record of the VSI Patents, including but not
`limited to:
`
`
`− U.S. Patent No. 6,638,268 Niazi
`
`− U.S. Patent No. 2005/0004523 Osborne
`
`− U.S. Patent No. 5,776,141 Klein
`
`− U.S. Pub. No. 2003/0195546 Solar
`
`‘032 patent claims, including:
`
`
`− Cl. 1
`− Cl. 9
`− Cl. 11
`
`3BSC does not believe that the claim term “rail structure” can be construed due to lack of
`written description, indefiniteness, nonenablement, inoperability, and impermissible
`broadening . BSC proposes this construction in the event that the Court determines that
`this claim term can and should be construed.
`
`
`
`11
`
`

`
`Page 15 of 58
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`− Cl. 18
`
`
`‘032 patent specification, including:
`
`
`− Summary of the Invention
`− Figs. 1-22
`− Brief Description of the Drawings
`
`
`Prosecution History of the ‘032 patent and all references cited therein, including
`without limitation:
`
`
`− July 28, 2011 Reasons for Allowance
`− July 28, 2011 Examiner’s Amendment Communication
`− July 28, 2011 Allowability Notice
`− February 22, 2011 Request for Continued Examination (RCE)
`− February 22, 2011 Amendment Submitted/Entered with Filing of
`CPA/RCE
`− December 19, 2010 Final Rejection
`− October 8, 2010 Response after Non-Final Action
`− July 30, 2010 Non-Final Rejection
`− June 28, 2010 Request for Continued Examination (RCE)
`− June 28, 2010 Amendment Submitted/Entered with Filing of 2010
`CPA/RCE
`− May 24, 2010 Final Rejection
`− February 19, 2010 Response after Non-Final Action
`− November 18, 2009 Non-Final Rejection
`− September 10, 2009 Request for Continued Examination (RCE)
`− September 10, 2009 Amendment Submitted/Entered with Filing of
`− 2009 CPA/RCE
`− June 8, 2009 Final Rejection
`− April 6, 2009 Response after Non-Final Action
`− December 4, 2008 Non-Final Rejection
`− October 1, 2008 Response to Election / Restriction Filed
`− July 7, 2008 Restriction/Election Requirement 2008
`
`
`‘850 patent claims, including:
`
`
`− Cl. 1
`− Cl. 9
`− Cl. 12
`− Cl. 19
`
`
`
`12
`
`

`
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`
`
`‘850 patent specification, including:
`
`
`− Summary of the Invention
`− Figs. 1-22
`− Brief Description of the Drawings
`
`
`Prosecution History of the ‘850 patent and all references cited therein, including
`without limitation:
`
`
`− October 23, 2012 Certificate of Correction
`− August 30, 2012 Applicant Summary of Interview with Examiner
`− August 22, 2012 Notice of Allowability
`− August 22, 2012 Reasons for Allowance
`− August 22, 2012 Examiner’s Amendment Communication
`− January 26, 2012 Application Claims
`
`
`‘413 patent claims, including:
`
`
`− Cl. 1
`− Cl. 4
`− Cl. 14
`
`
`‘413 patent specification, including:
`
`
`− Summary of the Invention
`− Figs. 1-22
`− Brief Description of the Drawings
`
`
`Prosecution History of the ‘413 patent and all references cited therein, including but not
`limited to:
`
`
`− February 20, 2012 Notice of Allowability
`− February 20, 2012 Examiner’s Amendment
`− February 20, 2012 Reasons for Allowance
`− November 1, 2011 Applicant Amendment Requesting
`Reconsideration after Non-Final Rejection
`− November 1, 2011 Applicant Arguments/Remarks Made in an
`Amendment
`− August 1, 2011 Office Action Non-Final Rejection
`− September 8, 2010 Response to Notice to File Corrected Application
`
`
`
`13
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`

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`
`Papers
`− July 8, 2010 Notice to File Corrected Application Papers
`− June 28, 2010 Preliminary Amendment
`− June 28, 2010 Specification, Claims, Abstract
`
`
`
`
`
`ii. Extrinsic Evidence:
`
`
`Prior art including but not limited to:
`
`
`− U.S. Patent No. 4,928,693
`− U.S. Patent No. 5,407,432
`− U.S. Patent No. 5,728,067
`− U.S. Patent No. 4,762,129
`− U.S. Pub. No. 2001/0011180 A1
`− U.S. Pub. No. 2001/0031979
`− U.S. Pub. No. 2003/0083613
`− U.S. Pub. No. 2003/0176837
`− U.S. Pub. No. 2003/0195510
`
`BSC reserves the right to rely on the expert testimony of Jon McIntyre, Vice
`
`President of Product Development at Bridgemedica, LLC, regarding how a person of
`
`ordinary skill in the art at the time of the claimed invention would have construed the
`
`claim term “rail structure,” in view of the totality of the intrinsic record.
`
`BSC additionally reserves the right to rely on the intrinsic or extrinsic evidence
`
`identified by VSI.
`
`
`
`
`
`14
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`

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`
`BSC’s Proposed
`Construction
`BSC proposes that no
`construction is necessary
`for the claim term
`“lumen” within the
`claim phrase “defining a
`rail structure without a
`lumen.” It should be
`construed in accordance
`with its plain and
`ordinary meaning, which
`is any cavity or space
`within a structure.
`
`
`
`VSI’s Proposed
`Construction
`A “lumen” is a
`passageway through
`which interventional
`cardiology devices are
`insertable.
`
`Appears in
`Claims
`‘032 patent
`cls. 1, 11
`
`‘850 patent
`cl. 1, 12
`
`‘413 patent
`cl. 1
`
`
`
`
`Disputed Claim
`Term
`“lumen”
`
`
`
`
`
`
`
`
`a. VSI’s Supporting Intrinsic and Extrinsic Evidence
`
`VSI proposes that a “lumen” is a passageway through which interventional
`
`cardiology devices are insertable.
`
`
`
`i. Intrinsic Evidence:
`
`In support of VSI’s construction, VSI relies upon the entire intrinsic record to
`
`establish the meaning of the claim limitations in the context of the patented invention.
`
`VSI also reserves the right to rely on BSC’s proposed intrinsic evidence. The specific
`
`intrinsic evidence on which VSI may rely includes, but is not limited to:
`
`The claims of VSI’s patents, including but not limited to:
`
`•
`
`•
`
`‘032 patent, claim 1 (e.g., “into and through the lumen to the branch
`artery”; “insertable through the cross-sectional inner diameter of the
`continuous lumen of the guide catheter”; “defining a coaxial lumen . . .
`through which interventional cardiology devices are insertable”).
`
`‘032 patent, claim 2 (e.g., “within the lumen of the guide catheter”;
`
`
`
`15
`
`

`
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`
`“interventional cardiology device passed through and beyond the coaxial
`lumen”).
`
`‘032 patent, claim 3 (e.g., “to receive an interventional cardiology device
`into the coaxial lumen”).
`
`‘032 patent, claim 11 (e.g., “the continuous lumen of the guide catheter . . .
`sized such that interventional cardiology devices are insertable into and
`through the lumen”; “the flexible tip portion being sized having a cross-
`sectional inner diameter of the continuous lumen of the guide catheter and
`defining a coaxial lumen having a cross-sectional inner diameter through
`which interventional cardiology devices are insertable”).
`
`‘032 patent, claim 12 (e.g., “when the distal portion of the flexible tip
`portion is insertable through the continuous lumen of the guide catheter”;
`“an interventional cardiology device passed through and beyond the coaxial
`lumen”).
`
`‘032 patent, claim 13(e.g., “an interventional cardiology device passed
`through continuous lumen of the guide catheter and into the coaxial
`lumen”).
`
`‘032 patent, claim 14 (e.g., “after the device is inserted into the continuous
`lumen of the guide catheter”).
`
`‘413 patent, claim 1 (e.g., “the continuous lumen of the guide catheter
`having a circular cross-sectional inner diameter sized such that
`interventional cardiology devices are insertable into and through the
`lumen”; “inserting a flexible tip portion of a coaxial guide catheter . . . into
`the continuous lumen of the standard guide catheter”; “inserting a
`substantially rigid portion . . . into the continuous lumen of the standard
`guide catheter”; “inserting the interventional cardiology device into and
`through the continuous lumen of the standard guide catheter . . . and
`advancing the interventional cardiology device through and beyond a
`lumen of the flexible tip portion”).
`
`‘413 patent, claim 6 (e.g., “placing a tapered inner catheter inside the lumen
`of the flexible tip portion”).
`
`‘413 patent, claim 7 (e.g., “interventional cardiology device passed through
`and beyond the coaxial lumen”).
`
`‘413 patent, claim 9 (e.g., “while the proximal portion remains within the
`lumen of the guide catheter”).
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`
`
`16
`
`

`
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`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`‘850 patent, claim 1 (e.g., “interventional cardiology devices are insertable
`into and through the continuous lumen of the guide catheter”; “the tubular
`structure having a cross-sectional outer diameter sized to be insertable
`through the cross-sectional inner diameter of the continuous lumen of the
`guide catheter”; “defining a coaxial lumen . . . through which interventional
`cardiology devices are insertable”).
`
`‘850 patent, claim 2 (e.g., “proximal portion remains within the lumen of
`the guide catheter”; “interventional cardiology device passed through and
`beyond the coaxial lumen”).
`
`‘850 patent, claim 3 (e.g., “to receive the interventional cardiology devices
`into the coaxial lumen”).
`
`‘850 patent, claim 12 (e.g., “interventional cardiology devices are insertable
`into and through the continuous lumen of the guide catheter”; “the flexible
`tip portion . . . sized to be insertable through the cross-sectional inner
`diameter of the continuous lumen of the guide catheter”; “having a cross-
`sectional inner diameter through which interventional cardiology devices
`are insertable”; “proximal portion . . . remaining within the continuous
`lumen of the guide catheter”).
`
`‘850 patent, claim 13 (e.g., “distal portion . . . is insertable through the
`continuous lumen of the guide catheter”; “interventional cardiology device
`passed through and beyond the coaxial lumen”).
`
`‘850 patent, claim 14 (e.g., “interventional cardiology device passed
`through continuous lumen of the guide catheter and into the coaxial lumen
`while the device is inserted into the continuous lumen”).
`
`‘850 patent, claim 15 (e.g., “after the device is inserted into the continuous
`lumen of the guide catheter”; “coaxial lumen through which an
`interventional cardiology device may be inserted”).
`
`The VSI Patents’ specifications, including but not limited to:
`
`•
`
`•
`
`•
`
`‘032 patent, Abst