Laboratoires Perouse v. W.L. Gore & Associates, Inc. (528 F. Supp. 2d 362, 2007)

MEMORANDUM OPINION AND ORDER

RICHARD J. HOLWELL, District Judge.

BACKGROUND

I. Procedural History

This is an action for patent infringement brought by Plaintiff Laboratoires Perouse, S.A.S. (“Perouse”) against Defendant Plaintiff W.L. Gore & Associates, Inc. (“Gore”). Perouse alleges that Gore has infringed U.S. Patent No. 6,019,787 (“the '787 patent”) by making, using, selling, and/or offering for sale in the United States products including Gore’s TAG® thoracic endoprosthesis devices and EX-CLUDER® bifurcated endoprosthesis devices. (Compl.1ffl 9-10.) Gore has filed a counterclaim for a declaratory judgment that (1) the '787 patent is invalid under the patent laws, and (2) that Gore has not infringed any claim of the '787 patent. (Answer ¶¶ 22-45.)

The parties identified claim language requiring construction, completed simultaneous briefing on claim construction, and submitted their opening and reply briefs to the Court on August 15, 2007. On September 21, 2007, Perouse filed a “Motion to Exclude Defendant/Counterclaim Plaintiffs Newly Proposed Claim Constructions” (“Motion to Exclude”), in which Per-ouse requested that this Court exclude and refuse to consider claim constructions allegedly presented for the first time in connection with Gore’s reply brief on claim construction. (Perouse Mot. to Exclude Br. 1.) On October 23 and 29, 2007, the Court held Markman hearings at which the parties argued their proposed constructions of the disputed claim terms in the '787 patent.

II. The'787 Patent

The '787 patent is entitled “Fitting tool for use of an expansible endoprosthesis for a human or animal tubular organ.” The specification of the '787 patent describes a self-expanding stent (also known as an “auto-expansible endoprosthesis”) and a tool for implanting a self-expanding stent in a desired location within a blood vessel in the body. The claims of the '787 patent cover only the “tool” invention. Claim 1, the only independent claim in the '787 patent, recites “[a] tool for fitting a self-expanding stent.” The tool of claim 1 includes three elements: (1) a “guide tube,” which allows the tool to follow a guide wire through a blood vessel to an appropriate location in the body; (2) a “housing part,” which is located at the distal end of the guide tube and houses the self-expanding stent prior to deployment at the treatment site; and (3) a “housing part opener,” which “opens” the housing part once positioned, allowing the stent to expand radially and hold open the walls of the blood vessel.

The specification of the '787 patent describes two embodiments of the invention. The two embodiments differ only in the “means for opening the ... housing part” used by each. The first embodiment in-eludes a set of wires attached to an actuation handle. When the handle is pulled, the wires cut the housing part (shown in the patent drawings as a cylindrical structure) and allow the self-expanding stent to expand. In the second embodiment, the housing part is slit longitudinally. The opposing edges of the slit are each lined with “gussets,” which are drawn as small tubular structures oriented parallel to the slit. (See '787 patent Fig. 8.) A cord, connected at its proximal end to an actuation handle, is threaded through these gussets, holding the edges of the housing part together. When the handle is pulled, the cord is withdrawn from the gussets, allowing the stent to expand.

The '787 patent issued on February 1, 2000 from U.S. Patent Application No. 08/946,657 (“the '657 application”), a divisional application of U.S. Patent Application No. 08/146,137 (“the '137 application”), which included eight claims. During prosecution of the '137 application, the patent examiner determined that the claims were drawn to two separate inventions, “an expansible endoprosthesis” (claims 1-5) and “a tool for fitting an expansible endoprosthesis” (claims 6-8), and issued a restriction requirement, which required the applicants to elect one of these inventions for further examination. (See Gallagher Opening Decl. Ex. B at 354-57.) The applicants elected the “endoprosthe-sis” claims and the examiner withdrew the “tool” claims from the application. (See Gallagher Opening Decl. Ex. B at 354-57.) The applicants refiled the “tool” claims on October 7, 1997 as the '657 application. (See Gallagher Opening Decl. Ex. B at 2-20.)

DISCUSSION

I. Perouse’s Motion to Exclude

In its Motion to Exclude, Perouse contends that the Court should refuse to consider several of the proposed claim constructions in Gore’s reply brief because these constructions are either worded differently from the corresponding constructions proposed in Gore’s opening brief or are constructions of claim terms that Gore did not construe at all in its opening brief. (Perouse Mot. to Exclude Br. 4-5.)

Perouse complains that it is prejudiced by Gore’s “newly proposed” constructions because Perouse has been denied the opportunity to respond. (Perouse Mot. to Exclude Br. 2, 10.) Furthermore, because Gore has proposed two different constructions for certain claim terms, Perouse alleges it was forced to “chas[e] a moving target” as it prepared for expert depositions and the Markman hearing. (Per-ouse Mot. to Exclude Br. 2.) Finally, Per-ouse alleges that Gore’s conduct forced Perouse to waste time and money preparing its Motion to Exclude. (Perouse Mot. to Exclude Br. 2.) However, Perouse did not request leave to file a supplemental response to Gore’s reply brief, nor did Perouse request postponement of the Markman hearing.

The Court finds that, with respect to most of the constructions challenged by Perouse, there is no meaningful difference in scope between Gore’s original and “newly proposed” constructions. With respect to these constructions, the Court believes Perouse has suffered no prejudice because it had a full opportunity to respond to the substance of each “newly proposed” construction, if not the precise language. In other cases, these new constructions conform to Perouse’s proposed constructions, thereby eliminating unnecessary disputes. (Gore Opp. to Mot. to Exclude Br. 8, Ex. I.) In a few cases, however, Gore’s “newly proposed” constructions are in fact new, or include “clarifications” that assert arguments not made in Gore’s opening brief and to which Perouse therefore did not have an opportunity to respond in writing. The Court has not relied upon any of Gore’s constructions from this last category, and therefore need not consider whether Perouse has been prejudiced by Gore’s late advancement of its constructions and arguments.

II. Claim Construction

A. Legal Standard

The claims of a patent define the limits of the patentee’s statutory right to exclude. See, e.g., Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005). The meaning and scope of the claim language is a question of law for the court’s decision. See Markman v. Westview Instruments, 52 F.3d 967, 976-79 (Fed.Cir.1995).

Because patents are addressed to practitioners in the field of the patented invention, a court should usually construe claim language consistent with its “ordinary and customary meaning” to a person of ordinary skill in the relevant art on the effective filing date of the patent application. Phillips, 415 F.3d at 1312-13. “Such a person is deemed to read the words used in the patent documents with an understanding of their meaning in the field, and to have knowledge of any special meaning and usage in the field.” Id. at 1313 (quoting Multiform Desicants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir.1998)).

To determine the “ordinary and customary meaning” of a claim term, a court should first consult the intrinsic evidence, which consists of the claims, the specification, and the prosecution history. See, e.g., Primos, Inc. v. Hunter’s Specialties, Inc. 451 F.3d 841, 847-48 (Fed.Cir. 2006) (“In ascertaining the ordinary and customary meaning of a claim term, a court’s primary focus should be on the intrinsic evidence of record, viz., the claims, the specification, and, if in evidence, the prosecution history.”); Kinik Co. v. Int’l Trade Comm’n, 362 F.3d 1359, 1365 (Fed.Cir.2004) (“The words of patent claims have the meaning and scope with which they are used in the specification and the prosecution history.”). Prior art cited to the examiner during prosecution is considered part of the prosecution history. See Phillips, 415 F.3d at 1317.

“A fundamental rule of claim construction is that terms ... are construed with the meaning with which they are presented in the patent document. Thus claims must be construed so as to be consistent with the specification .... ” Merck & Co., Inc. v. Teva Pharms. USA, Lie., 347 F.3d 1367, 1370 (Fed.Cir.2003) (citations omitted). Therefore, the patent specification has been called the most important guide to claim construction. See, e.g., Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (“[The specification] is always highly relevant to the claim construction analysis. Usually, it is disposi-five.”); Phillips, 415 F.3d at 1315-16 (“The best source for understanding a technical term is the specification from which it arose, informed, as needed, by the prosecution history.” (quoting Multiform Desiccants, 133 F.3d at 1478)).

The specification may show that a patentee has provided its own definitions for claim terms or has narrowed the scope of the claims through disclaimer. See Phillips, 415 F.3d at 1316. In such cases, the claim is construed according to the patentee’s expressed intent even if the resulting construction departs from the ordinary meaning of the claim language. See, e.g., id.; Honeywell Int’l, Inc. v. Universal Avionics Sys. Corp., 493 F.3d 1358, 1361 (Fed.Cir.2007) (“When a patentee defines a claim term, the patentee’s definition governs, even if it is contrary to the conventional meaning of the term.”) A patentee may redefine a term either explicitly or implicitly. See, e.g., Invitrogen Corp. v. Biocrest Mfg., L.P., 327 F.3d 1364, 1367 (Fed.Cir.2003) (“The applicant may also act as his own lexicographer and use the specification to implicitly or explicitly supply new meanings for terms”); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc., 262 F.3d 1258, 1268 (Fed.Cir. 2001) (“[T]he specification may define claim terms ‘by implication’ such that the meaning may be ‘found in or ascertained by a reading of the patent documents.’ ”).

Though claims should be interpreted in light of the specification, it is not generally appropriate to import limitations from the specification into the claims. See, e.g., N. Am. Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 1348 (Fed. Cir.2005) (“[UJnless required by the specification, limitations that do not otherwise appear in the claims should not be imported into the claims.”); Prima Tek II, L.L.C. v. Polypap, S.A.R.L., 412 F.3d 1284, 1289 (Fed.Cir.2005) (“We have repeatedly made clear that limitations cannot be imported from the specification into the claims.”); SciMed, Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1340 (Fed.Cir.2001) (describing the reading of a limitation from the written description into the claims as “one of the cardinal sins of patent law”). For example, the scope of a claim is usually not limited to the particular embodiment or embodiments described in the specification. See, e.g., Resonate Inc. v. Alteon Websystems, Inc., 338 F.3d 1360, 1364-65 (Fed.Cir.2003) (“[A] particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment.”) In order to determine whether the limitations of an embodiment should be applied to a claim, a court must determine whether a person of skill in the art would consider the embodiments to be merely exemplary, or whether they are intended to define the scope of the claim. See Phillips, 415 F.3d at 1323; Pfizer, Inc. v. Ranbaxy Labs. Ltd., 457 F.3d 1284,1290 (Fed.Cir.2006) (“[I]mport[ing] limitations from the specification into the claims ... should be avoided unless the patentee clearly ‘intends for the claims and the embodiments in the specification to be strictly coextensive.’ ” (quoting Phillips, 415 F.3d at 1323)).

The prosecution history, also part of the intrinsic evidence, may “inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be.” Phillips, 415 F.3d at 1317. However, the prosecution history “often lacks the clarity of the specification and thus is less useful for claim construction purposes.” Id.

“Extrinsic evidence is that evidence which is external to the patent and file history, such as expert testimony, inventor testimony, dictionaries, and technical treatises and articles.” Vitronics, 90 F.3d at 1584. While a district court may consult extrinsic evidence as part of the claim construction analysis, such evidence is considered less reliable than the intrinsic evidence. See, e.g., Phillips, 415 F.3d at 1317-19 (“[T]he court should keep in mind the flaws inherent in each type of [extrinsic] evidence and assess that evidence accordingly.”) While the testimony of expert witnesses may be useful in some cases, a court should disregard expert testimony that is merely conclusory or that is inconsistent with the intrinsic evidence. See id. at 1318.

A court may use general purpose dictionaries as an aid to claim construction, so long as the dictionary definition relied upon does not contradict the definition indicated by the intrinsic evidence. See id. at 1322-23 (stating that courts “may ... rely on dictionary definitions when construing claim terms, so long as the dictionary definition does not contradict any definition found in or ascertained by a reading of the patent documents.”). The Federal Circuit has specifically noted that dictionaries may be useful in the construction of ordinary, non-technical terms, which often involves “little more than the application of the widely accepted meaning of commonly understood words.” Id. at 1314; see also Agfa Corp. v. Creo Prods. Inc., 451 F.3d 1366, 1376 (Fed. Cir.2006) (affirming district court construction of “stack” based on dictionary definition); Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1306 (Fed.Cir.2006) (using dictionary definition in construction of claim term “geometry”). However, excessive reliance on dictionary definitions is improper because the “ordinary meaning” of a claim term is not the abstract dictionary definition, but the “meaning to the ordinary artisan after reading the entire patent.” Phillips, 415 F.3d at 1321. The correct approach is to “focus at the outset on how the patentee used the claim term in the claims, specification, and prosecution history, rather than starting with a broad definition and whittling it down.” Id.

Despite the guidelines outlined above, “there is no magic formula or catechism for conducting claim construction,” and a court is not “barred from considering any particular sources or required to analyze sources in any specific sequence, as long as those sources are not used to contradict claim meaning that is unambiguous in light of the intrinsic evidence.” Id. at 1324. Instead “what matters is for the court to attach the appropriate weight ... to those sources in light of the statutes and policies that inform patent law.” Id.

B. Construction of disputed claim language in the '787 patent

1. Claim 1

Claim 1 is the only independent claim in the '787 patent. All other claims in the patent are dependent claims, that is, they incorporate by reference all the elements of an earlier claim in the patent. See 35 U.S.C. § 112 ¶ 4. Claim 1 reads as follows:

A tool for fitting a self-expanding stent comprising:

a guide tube having a distal end; a housing part for housing a self-expanding stent, said housing part provided at said distal end of said guide tube; and

a housing part opener for opening said housing part independent of the sel-fexpanding stent.

a. “A tool for fitting a self-expanding stent”

The parties’ first dispute concerns whether “A tool for fitting a self-expanding stent,” is a substantive limitation on claim 1 that requires construction, and, if so, how it should be construed.

The language at issue appears in the preamble to claim 1 of the '787 patent. “The preamble is an introductory phrase that may summarize the invention, its relation to the prior art, or its intended use or properties,” but may in some cases constitute a limitation. See 3-8 Chisum on Patents § 8.06 (2007). No “litmus test” exists for determining whether a preamble acts as a substantive limitation on a claim. In re Paulsen, 30 F.3d 1475, 1479 (Fed.Cir. 1994). Instead, “a claim preamble has the import that the claim as a whole suggests for it.” Bell Commc’ns Research, Inc. v. Vitalink Commc’ns Corp., 55 F.3d 615, 620 (Fed.Cir.1995). As the Federal Circuit has explained,

If the claim preamble, when read in the context of the entire claim, recites limitations of the claim, or, if the claim preamble is “necessary to give life, meaning, and vitality” to the claim, then the claim preamble should be construed as if in the balance of the claim .... If, however, the body of the claim fully and intrinsically sets forth the complete invention, including all of its limitations, and the preamble offers no distinct definition of any of the claimed invention’s limitations, but rather merely states, for example, the purpose or intended use of the invention, then the preamble is of no significance to claim construction ....

Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed.Cir.1999) (quoting Kropa v. Robie, 38 C.C.P.A. 858, 187 F.2d 150, 152 (Oust. & Pat.App.1951)) (internal citations omitted).

Therefore, preamble language does not limit the scope of a claim when it merely states a “purpose or intended use of the invention.” In re Paulsen, 30 F.3d at 1479. However, “when the claim drafter chooses to use both the preamble and the body to define the subject matter of the claimed invention, the invention so defined, and not some other, is the one the patent protects.” Bell Commc’ns Research, 55 F.3d at 620.

Perouse argues that this entire phrase should be disregarded because it “is a claim preamble which merely states an intended use of the invention and does not limit the claim.” (Perouse Opening Br. 16.) Gore concedes that “for fitting a self-expanding stent” is a non-limiting statement of intended use, but maintains that “tool” is a substantive limitation requiring construction. (Gore Reply Br. 3.) The Court agrees that “for fitting a self-expanding stent” describes an intended use of the claimed apparatus, and will not construe this portion of the preamble. See Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed.Cir. 2002) (“[P]reambles describing the use of an invention generally do not limit the claims because the patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure.”).

With respect to “tool,” however, the Court finds that this is a substantive limitation requiring construction. The body of claim 1 merely recites three elements. Standing alone, the body does not “fully ... set[ ] forth the complete invention” of the '787 patent because the invention is not a set of three unassembled constituents, but a tool that includes these three elements and that can be used to implant a self-expanding stent within the body. (See '787 patent col.2 Il.46-47 (“Another aspect of the invention is a tool for fitting an auto-expansible endoprosthesis .... ”).) Pitney Bowes, 182 F.3d at 1305. In the context of claim 1, “tool” is clearly necessary for “life, meaning, and vitality,” and will be construed as a substantive limitation. Id.

Gore argues that “tool” should be construed to mean “a single instrument having the three constituents recited in the body of the claim (a guide tube, a housing part, and a housing part opener), none of which may be a part of the object to be fitted.” (Gore Proposed Order.) Perouse contends that, if the Court should find that the term “tool” requires construction, the proper construction is “instrument.” (Perouse Opening Br. 17.)

With respect to Gore’s proposed limitation, “having the three constituents recited in the body of the claim (a guide tube, a housing part, and a housing part opener),” Perouse argues that this construction is redundant, unnecessary, and confusing. (Perouse Reply Br. 10.) The Court agrees. The body of claim 1 already includes the “guide tube,” “housing part,” and “housing part opener” limitations. It would add nothing to the construction of the claim to read these limitations into the preamble word “tool” as well. Even if it were not redundant, Gore’s proposed limitation would be rejected as improper claim construction. None of these three constituents are part of the ordinary meaning of “tool,” and their inclusion would improperly import limitations from the specification into the claims. See Phillips, 415 F.3d at 1323-24.

Gore’s proposed construction includes a further limitation—that “none of [the guide tube, housing part, and housing part opener] may be a part of the object to be fitted.” In other words, Gore’s proposed construction of “tool” requires that the “tool” and the “object to be fitted,” i.e., the stent, are physically distinct, separate structures. (See Gore Opening Br. 21-25.)

Gore argues that the stated purpose of the tool, “for fitting a self-expanding stent,” implies that the tool and the stent must be physically separate structures. (Gore Opening Br. 21.) Gore further notes that the drawings in the '787 patent depict the endoprosthesis and tool as separate objects, and that the specification describes an endoprosthesis that is “inserted” into the tool. (Gore Opening Br. 22.) However, while it is true that the specification and drawings describe a tool that is physically separate from the object to be fitted, it is improper claim construction to import limitations from the specification to the claims unless there is a clear disclaimer of claim scope. See, e.g., Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1374 (Fed.Cir.2005) (“This court declines to import limitations to the claims from the specification absent a ‘manifest’ or ‘explicit’ exclusion.”); Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed.Cir. 2004) (“Even when the specification describes only a single embodiment, the claims of the patent will not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using ‘words or expressions of manifest exclusion or restriction.’ ”). There is no disclaimer, clear or otherwise, of “tools” that incorporate the object to be fitted, and therefore no justification for this Court to deviate from the ordinary meaning of the term “tool.”

Gore also argues that its proposed limitation is appropriate in light of the prosecution history of the '787 patent, in which a restriction requirement was issued against the '137 application (the parent application to the '787 patent) and the applicants responded by electing to pursue the “tool” and “stent” claims in separate applications. Gore apparently contends that the restriction requirement and the applicant’s election in compliance with this requirement somehow invoked a limitation of physical separateness between the tool and stent upon the patent claims that issued following this election. Gore has cited no ease law, and the Court is aware of none, that suggests that a restriction requirement limits the construction of claims in a later filed divisional application in the manner suggested by Gore. (See Gore Opening Br. 24-25; Gore Reply Br. 6.) Most courts that have considered similar issues have noted that a restriction requirement is primarily an administrative tool. See, e.g., Amersham Pharmacia Biotech, Inc. v. Perkin-Elmer Corp., 2000 WL 34204509, at *16 (N.D.Cal. Feb.28, 2000) (noting that restrictions are made “[f]or the purpose of case management and to control filing and search fees”); Michaels of Or. Co. v. Clean Gun, LLC, 2002 WL 31496414, at *8 (D.Or. July 9, 2002) (noting that restriction requirements “(1) faeilitate[ ] administration in the PTO; and (2) allow[] the PTO to obtain additional filing and maintenance fee revenue that would be lost if an applicant were always permitted to obtain a patent covering any number of distinct inventions.”) Therefore, courts have questioned whether it is appropriate to use a restriction requirement to substantively limit claims. See, e.g., Michaels of Or., 2002 WL 31496414, at *8 (“Restriction requirements do not constitute a substantive claim construction doctrine.”); Amersham, 2000 WL 34204509, at *15-16 (“[T]he applicants’ compliance with an administrative requirement (i.e., the restriction requirement) ... in the parent application, is entitled to little weight as against the applicants’ claims as amended, and the Examiner’s allowance of those claims, in the issued 648 patent.”); but see R2 Med. Sys., Inc. v. Katecho, Inc., 931 F.Supp. 1397, 1437-40 (N.D.Ill.1996) (noting that “the court has not identified any precedent using prosecution history of the election of a species in order to restrict or otherwise interpret the scope of a patent claim” but proceeding to consider restriction requirement and applicant’s response as part of the prosecution history to aid in discerning meaning of claim).

Even assuming that a restriction requirement may be considered as part of the claim construction analysis, this Court rejects Gore’s argument. The examiner’s restriction requirement simply requires an applicant to segregate its “tool” and “stent” claims into separate patent applications. 35 U.S.C. § 121. While the '137 applicants’ election in response to the restriction requirement might arguably be viewed as an admission that the elected “stent” invention is not an element of the non-elected “tool” invention, it did not impose an additional limitation on any claims so as to exclude products that include a “tool” and a “stent” in combination or physical contiguity.

“Tool” is a common, familiar term, and neither party contends that it has any specialized meaning in the relevant art. Construction of ordinary, non-technical terms can involve “little more than the application of the widely accepted meaning of commonly understood words.” Phillips, 415 F.3d at 1314. There is no indication that the word “tool,” in the context of the intrinsic evidence, includes the limitation of physical separateness proposed by Gore. The specification describes how the tool operates and the elements that it includes, not those that it excludes. Likewise, there is no indication that the “tool” and “stent” must be distinct, unconnected, or physically separate. Gore does not dispute that its proposed “none of which may be part of the object to be fitted” limitation is not part of the ordinary meaning of “tool.” In fact, Gore’s own expert stated that “most generally, a tool is a surgical instrument or implement for accomplishing a task.” (Matsumura Decl. ¶ 26.)

Furthermore, because claim 1 includes the transitional word “comprising,” there is a presumption that this claim is drafted in “open-ended” form, meaning that its scope includes the listed elements (i.e., a “guide tube,” “housing part,” and “housing part opener”) but does not exclude additional elements. See, e.g., Georgia-Pacific Corp. v. United States Gypsum Co., 195 F.3d 1322, 1327-28 (Fed.Cir.1999) (“The transitional term ‘comprising’ ... is inclusive or open-ended and does not exclude additional, unrecited elements or method steps.”); Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1348 (Fed.Cir.2001) (“In the parlance of patent law, the transition ‘comprising’ creates a presumption that the recited elements are only a part of the device, that the claim does not exclude additional, unrecited elements.”). This presumption is overcome only by “evidence of a clear intent to limit the claims.” Scanner Techs. Corp. v. ICOS Vision Sys. Corp., N.V., 365 F.3d 1299, 1305-06 (Fed. Cir.2004). Gore’s proposed construction is inconsistent with this presumption, as it would define claim 1 (and all claims dependent therefrom) so as to specifically exclude a self-expanding stent element. Gore does not provide evidence of the “clear intent” necessary to overcome this presumption.

Perouse’s proposed construction of “tool” to mean “instrument” reflects the meaning of this term as used in the '787 patent. This construction is also supported by dictionary definitions of “tool.” For example, the dictionary definitions of “tool” provided by Gore include “an instrument ... used or worked by hand” and “something (as an instrument or apparatus) used in performing an operation.” (Matsumura Opening Decl. Ex. E.) The invention described in the '787 patent is a physical instrument used to perform an operation — fitting an endoprosthesis within a vessel in the body. (See, e.g., 787 patent Abstract, col.1 11.46-47, col.3 11.33-43.)

The Court construes “a tool for fitting a self-expanding stent” to mean “an instrument.”

b. “a guide tube having a distal end”

i. “guide tube”

It is not clear whether the parties dispute the construction of the term “guide tube.” Perouse, in its opening brief, construed “guide tube” to mean “a hollow cylinder through which a guide can pass.” (Perouse Opening Br. 23-24.) Gore did not construe “guide tube” in its opening brief but stated that the term “may not be in dispute.” (Gore Opening Br. 26 n. 12.) In its reply brief, Gore alleged that the parties were in agreement that “guide tube” was to be construed as “a tubular structure with a central lumen.” (Gore Reply Br. 27.) Similarly, Perouse asserted in its reply brief that Gore agreed with Perouse’s proposed construction. (Perouse Reply Br. 13-14.) At the Markman hearing, Gore again stated that the parties did not dispute the construction of “guide tube.” (See Oct. 23, 2007 Tr. 78:10-24.) Perouse, however, asserted that there was a disagreement concerning whether the claim language required a lumen positioned exactly in the center of the tube or whether it permitted a guide tube with an off-center lumen.

The Court finds that the lumen need not be positioned exactly in the geometric center of the guide tube. There is no indication in the specification that the precise positioning of the lumen is important, and neither expert contends that a person of ordinary skill would interpret “guide tube” to include this limitation. Gore did not brief this issue. At the Markman hearing, Gore’s only argument in support of the limitation was that the specification and drawings consistently depict a tube with a lumen that is centered within the tube. This argument merely proposes importing a limitation from the specification into the claims, which is improper. See Phillips, 415 F.3d at 1323-24. The Court rejects this limitation.

The Court does not believe there is any other difference between the constructions proposed by the parties, and construes “guide tube” to mean “a hollow cylinder or tubular structure through which a guide can pass.” This is the ordinary meaning of the term as understood by a person of ordinary skill in the art at the relevant time, and is supported by the intrinsic evidence. For example, the specification discloses that “the tool is threaded onto a guide, inserted through the skin, and conveyed endoluminally as far as the desired location.” ('787 patent col.3 11.32-35.) This construction is further confirmed by extrinsic evidence, including dictionary definitions and patents for similar devices. (Golds Opening Decl. ¶¶ 63-67.)

The Court construes “a guide tube” to mean “a hollow cylinder or tubular structure through which a guide can pass.”

ii. “distal end”

The parties provide identical constructions of “distal end,” as it appears in the phrase, “guide tube having a distal end.” Both parties construe this phrase as “the extremity of the guide tube away from the operator.” (Perouse Opening Br. 22; Gore Proposed Order 2.) The Court agrees and adopts this construction.

Accordingly, the Court construes “a guide tube having a distal end” to mean “a hollow cylinder or tubular structure through which a guide can pass, having an extremity away from the operator.”

c. “a housing part for housing a self-expanding stent, said housing part provided at said distal end of said guide tube”

i. “a housing part for housing a self-expanding stent”

Perouse’s proposed construction of “a housing part for housing a self-expanding stent” is “a piece that covers a self-expanding stent.” (Perouse Opening Br. 20.) Gore’s proposed construction is “a case or enclosure that is capable of temporarily holding a self-expanding stent in a compressed state until placement in the desired location, regardless of whether the housing part actually covers the entirety of the stent or is even capable of doing so.” (Gore Proposed Order 2.)

With respect to the ordinary meaning of “housing,” the Court does not detect any meaningful difference between the parties’ proposed language. “A piece that covers” and “a case or enclosure” are both acceptable constructions that accurately reflect the meaning of “housing” as understood by a person of skill in the art in light of the intrinsic evidence. As explained in the specification, the “housing part” provides housing for the self-expanding stent during endoluminal delivery to the treatment site, until the housing part is “opened” and the stent expands. (See 787 patent col.3 ll.1-4, ll.33-43, col.3 1.57-col.4 l.4). The specification makes clear that the “housing part” fits around and covers the outside of the stent. For example, a stent is described as being “inserted” into the housing part of one embodiment. ('787 patent col.3 ll.1 — 4.)

Gore has not objected to Perouse’s proposed language, “a piece that covers.” In fact, Gore has indicated that it believes the parties are in agreement with respect to this aspect of the construction. (Gore Reply Br. 6.) Perouse’s objection to Gore’s definition is apparently that “case or enclosure” is too narrow. (Perouse Reply Br. 11.) “Enclosure” is arguably narrower in scope than “a piece that covers.” For example, the dictionary definition of “housing” provided by Perouse’s expert is “something that covers or protects, as a case or enclosure.” (Gold Opening Decl. Ex. 5 at 585.)

There is no indication in the intrinsic evidence that “housing part” requires or excludes any particular type of housing or covering. Therefore, though the parties’ constructions may not be substantively different, the Court will incorporate both parties’ proposed language into its construction in order to ensure that it captures the full scope of the ordinary meaning of “housing.” The Court construes “a housing part” to mean “an enclosure or covering.”

The parties also dispute Gore’s proposed limitation that the “housing part” must be “capable of temporarily holding a self-expanding stent until placement in the desired location” (emphasis added). Gore’s proposed construction is rejected because the ordinary meaning of “housing” does not include the requirement that the “housing” must constrain the housed object from expansion. While the specification of the '787 patent describes a delivery device that constrains a self-expanding stent, this description does not demonstrate the patentee’s intent to implicitly or explicitly redefine “housing,” and therefore the ordinary meaning applies.

Finally, Gore has raised an issue regarding whether the “housing part” is required to “cover the entire stent or even [be] capable of doing so.” (Gore Reply Br. 9.) Gore apparently interprets Perouse’s proposed construction as requiring a housing part that “completely cover[s] the self-expanding stent.” (Gore Reply Br. 7.) It is not at all clear, however, that Perouse even advances this “complete coverage” limitation, which is not apparent from Per-ouse’s proposed claim language, “a piece that covers a self-expanding stent.” Per-ouse did not argue for this limitation in its briefs, and addressed the issue only perfunctorily at the Markman hearing. (See Oct. 23, 2007 Tr. 70:12-18.)

Assuming this issue requires resolution, the Court finds that the “housing part” element does not require complete coverage of the self-expanding stent nor does it require that the “housing part” be capable of complete coverage. While the drawings of the '787 patent depict a housing part that completely covers a self-expanding stent, there is no indication that this is a significant or necessary detail. The Court finds that a person of ordinary skill in the art would not interpret the “housing part” element as necessarily capable of completely covering a self-expanding stent. Nothing in the intrinsic evidence indicates that partial coverage is excluded from the scope of this element or that the degree of coverage provided by the “housing part” is an important aspect of the invention.

ii. “for housing a self-expanding stent”

The “housing part” of claim 1 is not a housing part for any object, but a housing part “for housing a self-expanding stent.” In the context of the '787 patent, this means a “housing part” that fits a self-expanding stent. A person of ordinary skill would understand that a “housing” is designed to house a particular object or structure. In the context of the '787 patent, the “housing part” element houses a self-expanding stent. That is, the housing part provides a covering, case, or enclosure for a self-expanding stent. Therefore the housing part must be of a size and shape that fit a self-expanding stent.

Accordingly, the Court construes “a housing part for housing a self-expanding stent” to mean “an enclosure or covering that fits a self-expanding stent.”

iii. “said housing part provided at said distal end of said guide tube”

The final dispute between the parties regarding the “housing part” element concerns the location of the housing part along the guide tube. The “housing part” of claim 1 is “provided at said distal end of said guide tube.” ('787 patent col.4 11.9— 10.) Gore construes this phrase to mean “provided at or in contact with the tip end of a guide tube,” while Perouse contends that it means “located at the extremity of a guide tube away from the operator.” (Gore Proposed Order 2; Perouse Opening Br. 22.) The primary point of dispute between the parties is whether, as Gore asserts, the housing part must be in contact with the distal tip of the guide tube, or whether, as Perouse asserts, the housing part must simply be located in the area near the distal extremity of the guide tube. (See Gore Opening Br. 26-27; Gore Reply Br. 9-11; Perouse Opening Br. 22-23 & n. 16; Perouse Reply Br. 12-13.)

Gore construes “distal end” to mean “distal tip.” Gore’s construction is not consistent with the ordinary meaning of “distal end” as informed by the intrinsic evidence. “End” is used ambiguously in the '787 specification. For example, “end” and “end parts” are used interchangeably in the specification (alternately describing the “flared” portions of the endoprostheses as “ends” and “end parts”), indicating that “end” is not used as a synonymn for “tip.” ('787 patent col.1 ll.40-42, col.3 ll.44-45.) However, “end” is arguably used to mean “tip” when describing the open “distal end” of the housing part or the “cord ... connected, at its proximal end, to the actuation handle.” ('787 patent col.3 ll.5-7, col.3 1.67-col.4 1.2.) However, other intrinsic evidence indicates that “distal end” is not used as a synonymn for “tip end.” Specifically, patents cited during prosecution of the '787 patent use “end” or “distal end” to refer to the area near the extremity of a device. (See Golds Reply Decl. Ex. 16, col.8 11.26-27; Ex. 17, col.4 11.24-30.); see also V-Formation, Inc. v. Benetton Group SpA, 401 F.3d 1307, 1311 (Fed.Cir. 2005) (stating that prior art references cited in patent or prosecution history are considered intrinsic evidence).

Finally, extrinsic evidence also refutes Gore’s proposed construction of “distal end” to mean “distal tip.” U.S. Patent No. 4,950,228, a patent issued in 1990 that was not cited during prosecution but nevertheless sheds light on the meaning of the disputed language to a person of ordinary skill in the art at the relevant time, clearly distinguishes between the “distal end” and “distal tip” of a ureteral stent. (Golds Reply Decl. Ex. 18, col.3 1.41-col.4 1.15.) Because both the intrinsic and extrinsic evidence indicate that “distal end” was used by persons of skill in the relevant art to mean either the distal tip or the area near the distal tip, the Court adopts Per-ouse’s construction of this claim term.

Accordingly, the Court construes the phrase “a housing part for housing a sel-fexpanding stent, said housing part provided at said distal end of said guide tube,” to mean “an enclosure or covering that fits a self-expanding stent, regardless of whether the housing part actually covers the entirety of the stent or is even capable of doing so, said housing part located at the extremity of a guide tube away from the operator.”

d. “a housing part opener for opening said housing part independent of the self-expanding stent”

i. Applicability of 35 U.S.C. § 112 ¶ 6

The parties first dispute whether “a housing part opener for opening said housing part independent of the self-expanding stent” should be construed as a “means-plus-function” element under 35 U.S.C. § 112 ¶ 6.

Under 35 U.S.C. § 112 ¶ 6, “[a]n element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claims shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” 35 U.S.C. § 112. Thus, this provision “operates to restrict claim limitations drafted in such functional language to those structures, materials, or acts disclosed in the specification (and their equivalents) that perform the claimed function.” Personalized Media Commc’ns, LLC v. Int’l Trade Comm’n, 161 F.3d 696, 703 (Fed.Cir.1998). A claim limitation drafted in this manner is called a “means-plus-function” (or “step-plus-function”) limitation. See, e.g., Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364, 1371 (Fed.Cir.2003). The question of whether § 112 ¶ 6 applies is a question of law for the court. Personalized Media, 161 F.3d at 702.

To determine whether a limitation is drafted in “means-plus-function” format, the Court looks to the language of the claim. In particular, “the term ‘means’ is central to the analysis.” Id. at 703. Claim language that includes the word “means” triggers a presumption that the claim is drafted according to § 112 ¶ 6, as a “means-plus-function” claim. Id. Conversely, a claim limitation that does not use the word “means” triggers a presumption that § 112 ¶ 6 does not apply, and that the claim should be construed in the ordinary fashion. See, e.g., LG Elecs., Inc. v. Bizcom Elecs., Inc., 453 F.3d 1364, 1372 (Fed.Cir.2006).

It is possible to rebut the presumption triggered by the absence of the word “means” “by showing that the claim element recite[s] a function without reciting sufficient structure for performing that function.” Watts v. XL Sys., Inc., 232 F.3d 877, 880 (Fed.Cir.2000). However, “sufficient structure” does not mean “specific structure.” Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1359 (Fed.Cir.2004) “Instead ... it is sufficient if the claim term is used in common parlance or by persons of skill in the pertinent art to designate structure, even if the term covers a broad class of structures and even if the term identifies the structures by their functions.” Id. at 1359-60. As a result, “the presumption flowing from the absence of the term ‘means’ is a strong one that is not readily overcome.” Id. at 1358. The Federal Circuit has “seldom held” that claim language not drafted using the word “means” is to be construed under § 112 ¶ 6, as a means-plus-function claim. Id. at 1363 (identifying only one opinion in which § 112 ¶ 6 was invoked without the word “means”); but see Mass. Inst, of Tech. v. Abacus Software, 462 F.3d 1344, 1353-55 (Fed.Cir.2006) (construing “colorant selection mechanism” as “means-plus-function” element).

Gore contends that the “housing part opener” element is drafted as a “means-plus-function” limitation and should be limited to the specific embodiments disclosed in the specification. (Gore Opening Br. 27-31; Gore Reply Br. 12-13.) Perouse contends that because this element does not include the word “means” and because “housing part opener” is “inherently structural” language, it is not a “means-plus-function” element and should be construed according to its ordinary meaning, “a device that opens the housing part.” (Perouse Reply Br. 14-15.) Gore’s expert concedes that “opener” does not have a specialized meaning in the relevant art and that the dictionary definition of “opener” is “one that opens.” (Matsumura Decl. ¶ 41-43).

Applying the analysis outlined above, the Court first notes that this element was not drafted using the word “means.” As a result, there is a presumption that the element is not drafted in “means-plus-function” format. See, e.g., DePuy Spine Inc. v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1023 (Fed.Cir.2006). To determine whether this presumption is rebutted, the Court must determine whether the “housing part opener” element merely “recites a function without reciting sufficient structure for performing that function.” Watts, 232 F.3d at 880.

Neither “housing part opener” nor “opener” appears in the '787 specification. Therefore, the specification does not help to determine whether “opener” constitutes structural language.

In Lighting World, Inc. v. Birchwood Lighting, Inc., the Federal Circuit reversed a district court finding that a claim element for a “connector assembly” was a “means-plus-function” element. 382 F.3d at 1359. In doing so, the court explicitly rejected the premise, relied upon by the district court, that the presumption arising from the absence of the word “means” was rebutted because the claim language “does not bring to mind a particular structure.” Id. at 1360. Instead, “what is important is whether the term is one that is understood to describe structure, as opposed to a term that is simply a nonce word or a verbal construct that is not recognized as the name of structure and is simply a substitute for the term ‘means for.’ ” Id. The “pertinent distinction” is whether or not the term at issue is “a generic structural term such as ‘means,’ ‘element,’ or ‘device’ ... [or] a coined term lacking a clear meaning such as ‘widget’ or ‘ram-a-fram.’ ” Id. The court held that a term may be structural even if “the term may encompass a multitude of structures” and “may in the end include any structure that performs the [function].” Id. at 1361. It found that “connector” was a noun denoting structure based in part on dictionary definitions including “something that connects” and “one who or that which connects ... any of various devices for connecting one object to another.” Id. at 1360-61.

The claim term at issue here, “housing part opener,” is similar to “connector assembly,” the term at issue in Lighting World. The relevant dictionary definition of “opener” is “one who or that which opens.” The Oxford English Dictionary (2d Ed.), vol.10 p. 843. As noted above, the Lighting World court found that “connector assembly” was a structural term based in part on a dictionary definition of “connector” that used similarly functional terms.

Expert testimony may be relevant to the determination of whether a claim element is drafted in, “means-plus-funetion” format as long as the testimony is consistent with the intrinsic evidence. Lighting World, 382 F.3d at 1359. Per-ouse’s expert states that the term “opener” indicates structure both in common parlance and to a person of skill in the art. (Golds Reply Decl. ¶¶ 6-7.) In support of this claim, she notes phrases like “can opener” and “bottle opener,” and cites several pre-1992 patents in which “opener” was used “to indicate structures which opened something.” (Golds Reply Decl. ¶¶ 6-7.) While these “openers” identified by Perouse’s expert obviously are not suitable “housing part openers” for purposes of the '787 patent, these examples confirm that “opener” denotes structure and that the drafter of the patent intended “housing part opener” to refer by analogy to structures that open a housing part. Though “housing part opener,” like “connector assembly,” may not “bring to mind a particular structure,” it is not a generic structural term like “mechanism,” “means,” “element,” or “device.” See Lighting World, 382 F.3d at 1360; Maas. Inst, of Tech., 462 F.3d at 1354 (“The generic terms ‘mechanism,’ ‘means,’ ‘element,’ and ‘device’ typically do not connote sufficiently definite structure.”). Instead, “housing part opener” would be understood by a person of skill in the art to be a structural term defined by its function, like “connector.” “Housing part opener” is therefore structural for the purposes of the § 112 ¶ 6 analysis. See, e.g., Lighting World, 382 F.3d at 1361 (finding “connector” to be a name for structure “defined in terms of the function it performs”); see also Personalized Media, 161 F.3d at 705 (“[T]he fact that a ‘detector’ is defined in terms of its function ... does not detract[ ] from the definiteness of structure. Even though the term ‘detector’ does not specifically evoke a particular structure, it does convey to one knowledgeable in the art a variety of structures known as ‘detectors.’ ”).

Evidence from the prosecution history of the applicant’s intent in drafting the “housing part opener” element also supports the Court’s finding that this element should not be construed according to § 112 ¶ 6. See, e.g., Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1584 (Fed.Cir. 1996) (finding § 112 ¶ 6 not applicable in part because “nothing cited to us from the prosecution history or elsewhere suggests that the patentee intended to claim in that fashion”); Markman, 52 F.3d at 985 (“The subjective intent of the inventor when he used a particular term is of little or no probative weight in determining the scope of a claim (except as documented in the prosecution history).”) (emphasis added). The goal of the analysis used to determine whether § 112 ¶ 6 applies appears to be ascertaining whether or not the drafter intended to take advantage of this provision. For example, the use of the word “means” is a significant factor in the analysis because it is considered a reliable indicator that a drafter intended to draft a “means-plus-function” limitation. See, e.g., Masco Corp. v. U.S., 303 F.3d 1316, 1326 (Fed.Cir.2002) (“The use of the word ‘means’ to describe a claim limitation ‘gives rise to “a presumption that the inventor used the term advisedly to invoke the statutory mandates for means-plus-function clauses.” ’ ”); Unidynamics Corp. v. Automatic Prods. Int’l, Ltd., 157 F.3d 1311 (Fed.Cir.1998) (“The use of the term ‘means’ generally (but not always) shows that the patent applicant has chosen the option of means-plus-function format ....”) (emphasis added); DESA IP, LLC v. EML Techs., LLC, 211 Fed. Appx. 932, 936 (Fed.Cir.2007) (“[T]he claims use both means-plus-function language ... and structural language ..., which suggests that the patentee intentionally used ‘means’ language to invoke § 112, ¶ 6.”) (emphasis added).

The '657 application was filed with three claims, numbered 6 through 8. (Gallagher Decl. Ex. B at 5-11, 19, 139.) Claim 6 was the only independent claim. (Gallagher Decl. Ex. B at 10-11.) During prosecution of the '657 application, the examiner rejected claim 6 as “clearly anticipated” by U.S. Patent No. 4,447,222, issued to Santinoranont (“Santinoranont”). In response to the rejection, the applicants canceled claims 6-8 and substituted claims 9-20, which are identical to claims 1-12 of the '787 patent. (Gallagher Deck Ex. B at 150-53; '787 patent col. 4 11.5-col.6 1.3.) Claim 9, the only independent claim among the new claims, was similar to claim 6. (Gallagher Deck Ex. B at 150-53.) While the last element of claim 6 recited “means [ ] for opening the tulip-shaped part longitudinally,” this language was replaced in claim 9 by “a housing part opener for opening said housing part independent of the self-expanding stent.” (Gallagher Deck Ex. B at 10,150.)

The applicants’ response to the rejection of claim 6 clearly indicates that the “housing part opener” element in claim 9 of the '657 application (which issued as claim 1 of the '787 patent) was not intended as a “means-plus-function” claim. The corresponding element in claim 6 (“means ... for opening the tulip-shaped part longitudinally”) is clearly drafted as in “means-plus-function” format — it includes the word “means” without any additional structure capable of performing the “opening” function. Biomedino, LLC v. Waters Techs. Corp., 490 F.3d 946, 950 (Fed.Cir. 2007) (noting that presumption arising from use of the word “means” can be rebutted if “the claim, in addition to the functional language, recites structure sufficient to perform the claimed function in its entirety” (quoting Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1375 (Fed.Cir. 2003))). In drafting claim 9, the applicants did not simply add “independent of the self-expanding stent” to the existing language of claim 6. Instead, they replaced “means” in claim 6 with “housing part opener” in claim 9. (Gallagher Decl. Ex. B at 10, 150.) The “means for opening” language of claim 6 demonstrates that the applicants knew how to draft a “means-plus-function” element and could have done so if they had intended. But the applicants reworded the claim without “means” language, signaling their intent to avoid construction of the “housing part opener” element under § 112 ¶ 6.

The Court concludes based on the intrinsic and extrinsic evidence that “housing part opener” was not drafted as a means-plus-function element, and construes this language according to its ordinary meaning, “a device that opens.”

ii. “for opening said housing part independent of the self-expanding stent”

Gore addresses the “independent of the self-expanding stent” limitation by asserting that, during prosecution of their patent, the applicants disclaimed all “tools that move the housing part by the action of the stent.” (Gore Reply Br. 14.) Gore’s argument is based on the fact that, after the examiner rejected claim 6 of the '657 application as anticipated by Santinoranont, the applicants amended their claims to add the limitation “for opening said housing part independent of the self-expanding stent” to the “housing part opener” element of new independent claim 9. (Gore Opening Br. 14-16; Gallagher Decl. Ex. B 139-55.) The applicants argued that this limitation rendered the amended claims patentable over the prior art, including Santinoranont:

As discussed above, a tool with a housing part opener for opening the housing part independent of the object to be fitted is critical in order to prevent damage to the object. The Santinoranont reference does not disclose a tool with such a feature. Therefore, it is respectfully submitted that the rejection raised by the Examiner is not applicable to new independent claim 9, and the claims that depend therefrom, with the additional limitation discussed above.

(Gallagher Decl. Ex. B. at 153.); see also supra note 14-16.

Gore is correct that the scope of a claim “may be limited by a disclaimer in the specification or prosecution history.” Atofina v. Great Lakes Chem. Corp., 441 F.3d 991, 997 (Fed.Cir.2006) (citing Phillips, 415 F.3d at 1316-17); see also Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir.1995) (“The prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution.”); Omega Eng’g, Inc, v. Raytek Corp., 334 F.3d 1314, 1326 (Fed.Cir.2003) (stating that disclaimer requires a “clear and unmistakable” disavowal during prosecution). However, the applicants did not disclaim housing parts that “spread out” or “unfold” by operation of the self-expanding stent, as Gore contends. (Gore Opening Br. 31-32; Gore Reply Br. 13-17.) As the amended claim language indicates, the applicants at most disclaimed all tools in which the housing part opener is not “independent of the object to be fitted.”

Gore’s argument is based on an incorrect construction of “open” to mean “spread out” or “unfold.” Indeed, Gore clarified during the Markman hearing that its construction required that the self-expanding stent may not “push” the housing part apart when it expands. Instead, the housing part must expand “all by itself, automatically.... In other words, if the stent were constrained in some way ... the housing part would still open up.” (Oct 23, 2007 Tr. at 88:22-96:25.) Under Gore’s interpretation, the housing part is “opened” when it expands radially outward, as it must in order to release the self-expanding stent.

While “spreading out” is undoubtedly one of many permissible definitions of “opening” in common parlance, a person of ordinary skill would understand that a different meaning is used in the context of the '787 patent. The ordinary meaning of a claim term for purposes of claim construction is the meaning that is used by the applicant in the patent and prosecution history. See Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed.Cir.2005) (“We cannot look at the ordinary meaning of the term ... in a vacuum. Rather, we must look at the ordinary meaning in the context of the written description and the prosecution history.”); Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 375 F.3d 1341, 1351 (Fed.Cir.2004), rev’d on other grounds, 546 U.S. 394, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006) (proper definition is the “definition that one of ordinary skill in the art could ascertain from the intrinsic evidence in the record”).

The specification makes clear that “opening” of the housing part does not refer to the outward expansion of the housing part. For example, the abstract of the '787 patent describes “[c]utting threads [that] cause the housing to open longitudinally.” ('787 patent Abstract.) The phrase “to open longitudinally” makes no sense if, as Gore maintains, “open” means “spread out” or “unfold,” because these actions require motion that is directed radially outward, not longitudinally.

Furthermore, the '787 patent describes two embodiments, which differ only in the “means for opening” employed by each. In one embodiment, the housing part is “opened” using “wires for separating, such as by cutting, the ... housing part, into several petal-like parts, or sections.” ('787 patent col.l 11.54-57.) In another embodiment, “longitudinal opening” of the housing part occurs when a cord is withdrawn from the series of gussets through which it passes. ('787 patent col.l 11.58-63, col.3 1.57-col.4 1.4.) In neither embodiment does “opening” refer to the expansion, “spreading out,” or “unfolding” of the housing part. Instead, a person of ordinary skill in the art would understand that, in the context of the '787 patent, “opening” refers to the creation of an opening or separation in the housing part, a step which necessarily precedes and is distinct from the expansion of the housing part and stent.

Furthermore, the construction of “opening” relied upon by Gore to support its disclaimer argument is entirely inconsistent with its argument that the “cutting wire