Appeal 2007-2783
Reexamination 90/005,509
Patent 5,533,499
tissue engaging portion of an end region is coextensive with the resilient
member secured thereon and extends no further” (Brief 12:17-19). Claim 53
is argued separately, based on its recitation of an adhesive void extending
between opposite portions of the side edges of the truss.
The patentee’s construction of claims 1, 8 and 49 as a group is overly
narrow and not the broadest reasonable interpretation consistent with the
specification. There is nothing in these claims which concerns whether the
tissue engaging portion of any end region of the truss is coextensive with the
resilient member and extends no further. The patentee’s view is based solely
on (1) the requirement in these claims that the truss member has first and
second end regions adapted to engage the outer wall tissue of a first and
second nasal passage, respectively, and (2) the requirement in these claims
that the resilient member is “secured to at least a tissue engaging portion of
each of the first and second end regions.” (Br. 12:11-17). Those features of
the claims reasonably encompass embodiments in which the resilient
member is not coextensive with the tissue engaging portion of an end region.
Coextensiveness does not have anything to do with these limitations, at least
not as we can understand the association, if any, from the patentee’s brief.
The patentee does not meaningfully articulate from where and how the
“coextensive” assertion arises. An element’s being “secured to” another
element manifestly does not impose any requirement on coextensiveness.
As best we can determine, and as best we can tie the patentee’s
argument to the claims, the patentee is arguing that in each end region of the
truss the resilient member must contact only those areas which actually
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