Claim Construction Order

Calmedica LLC v. Best Vascular, Inc., et al., Case No. 1:04-cv-02646 (N.D. Ga. June 18, 2008) (Story, J.)

Judge Story construed the claims of two patents relating to a method and apparatus for preventing restenosis (i.e., the subsequent narrowing) of a blood vessel after angioplasty, a procedure for widening a region of a blood vessel that has been narrowed (stenosed) by the buildup of atherosclerotic plaque.

The Court construed a number of disputed terms and phrases. Notably, as he has done in at least one previous case, Judge Story adopted his own constructions for a couple of the disputed terms. Specifically, the Court rejected both parties’ proposed constructions of the claim phrase “wherein the radioactive dose is incorporated into a liquid for delivery” in favor of its own, and found that the appropriate construction of the claim term “operatively connected” was a combination of the parties’ proposed constructions.

Also of interest, the Court held that the term “positioner” is a means-plus-function clause despite the presumption against means-plus-function treatment because the word “means” was not used. In so holding, the Court agreed with the Defendant that “positioner” is a functional word that conveys no structure and has no well-understood structural meaning in the art. The term was not found in any of the prior art of record or in any of the inventor’s or Plaintiff’s other patents. Further, the Court rejected the Plaintiff’s argument that the prosecution history supported a broader construction. The applicant had replaced the term “positioning means” with the term “positioner” during prosecution “for improved clarity of the claims.” The Court found that because this amendment was made after the claims had been allowed over the prior art, it was not intended to change the scope of the claim and remove the clause from the purview of means-plus-function treatment.