Appeal No. 2003-1725
Application No. 09/357,645 Page 15
Payne et al. disclose at least two walls of the tube
that are “essentially perpendicular” to the
longitudinal axis of the occluding member (spring plate
28): the flange wall near ref. no. 8 in Figs. 1 and 2
and also the portions of the tube near the blade (15)
in the closed configuration (Fig. 2). The disclosure
of Payne et al. anticipates claim 5.
On the other hand, appellants (reply brief, page 13) argue
that:
To the extent that the flanged end of Payne’s tubing or
the constricted portion of the wall adjacent the
occluder blades could even be considered to be “a wall”
of the tubing, the clear language of the claim
limitation in question excludes such a wall from the
scope of the claim. Claim 5 does not recite that any
conceivable wall, or portion thereof, of the tube is
oriented perpendicular to the occluding member
longitudinal axis - to the contrary, the claim language
points to a very specific wall - namely, that “of a
tube to be occluded.” The collapsed region of the tube
wall in Payne pointed out in the Answer is excluded
because this is not a wall of a tube “to be occluded,”
but is rather a wall of a tube already occluded (to the
extent that this portion of a wall can fairly be
considered a wall on its own at all). The flange end
surface is also excluded because this “wall” can hardly
be considered a wall “to be occluded” by the occluding
member, since it is not even remotely in the vicinity
of the occluding blades of Payne, which contact, deform
and occlude the cylinder perimeter wall of the tube,
thereby blocking flow.
We agree with appellants viewpoint since the plain language
of claim 5 precludes consideration of either of the flange wall
(unnumbered flange located at the left-side or right-side ends of
the tube depicted in the figures of Payne) or the portions of the
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