Appeal 2007-2783
Reexamination 90/005,509
Patent 5,533,499
engage tissue. The key here concerns what constitutes a “tissue engaging
portion” as is recited in claims 1 and 49.
According to the Examiner, it is within the scope of these claims that
not the entirety of a tissue engaging portion must actually engage tissue. We
agree. The Examiner’s position is within the broadest reasonable
construction of these claims consistent with the specification. It is
reasonable that some areas within the tissue engaging portion of an end
region need not actually engage tissue, if those areas are bound by,
contained within, or positioned on the back of the areas which do actually
engage tissue. The patentee’s specification nowhere precludes referring to
an entire end region as a tissue engaging portion even though in reality only
the external surface on the underside actually engages tissue. What is
internal to the end region and what is on the backside of the end region are a
part of the tissue engaging portion even though they do not actually contact
tissue. As is shown in the Examiner’s illustration on page 9 of the Answer
in connection with a disclosed embodiment of Iriarte, a non-tissue engaging
area is bounded and confined by the reverse “C” shape of the area actually
engaging tissue and thus the entire region defined by the dotted lines can
reasonably be regarded as the tissue engaging portion even though an area
within it does not actually engage tissue. Consequently, in Iriarte’s
embodiment of Figure 2, the resilient member or lamina 1 does make contact
with the tissue engaging portion of the end regions of the truss.
In any event, we conclude also that the patentee’s argument is without
merit because none of claims 1, 8 and 49 includes the limitation that the
resilient member must contact or engage the tissue engaging portion of any
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