Appeal No. 1999-1964 Page 4
Application No. 08/349,665
and in support head 36, pressurized fluid passes through turbine blades 76 to turn the
cutting wheel, and then is caused to reverse its direction, at which point its flow through
holes 78 induces return flow to the proximal end of the device, acting as an axial flow
pump, whereby
[t]he return flow will serve to aspirate the particles of plaque being cut
away by the rotating cutting head 58, and the pressure differential created
by application of positive pressure through the annular passageway 30 will
also serve to pull the plaque 20 into a cutting position in the path of cutting
blades 70 (column 5, lines 45-50, emphasis added).
Kensey states that “[i]f necessary, negative pressure can be applied at the proximal
end” of the return tube (column 5, lines 43-45; emphasis added), which indicates that
providing suction to the proximal end of the return tube is an option. It therefore is clear
that the fluid jets emanating from the end of the tubular member, on their own, “attract”
the thrombus toward the tubular member, as is required by claim 37, and “help drive”
the thrombus toward the tubular member, as required by claim 38. Since these claims
are cast in “comprising” format, it matters not that the Kensey device and method
incorporate other elements and steps.2
The only argument advanced by the appellants with regard to the rejection of
claims 37 and 38 is that the fluid jets in Kensey simply cause the cutter to rotate and do
2It is well settled the use of the term "comprising" in a claim opens the claim to inclusion of
elements or steps other than those recited in the claim. In re Hunter, 288 F.2d 930, 932, 129 USPQ 225,
226 (CCPA 1961).
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