## United States Court of Appeals for the Federal Circuit

2009-1006 EDWARDS LIFESCIENCES LLC and ENDOGAD RESEARCH PTY LIMITED, Plaintiffs-Appellants,

v. COOK INCORPORATED, Defendant-Appellee, and W.L. GORE & ASSOCIATES, INC., Defendant-Appellee.

Hugh A. Abrams , Sidley Austin LLP, of Chicago, Illinois, argued for plaintiffsappellants. With him on the brief were Constantine L. Trela, Jr. , David T. Pritikin and Lisa A. Schneider

. Richard A. Kaplan , Brinks Hofer Gilson & Lione, ofChicago, Illinois, argued for defendant-appellee Cook Inco rporated. With him on the brief were Bradley G. Lane , Jeffry M. Nichols and Julie L. Leichtman

. Harry C. Marcus , Locke Lord Bissell & Liddell LL P, of New York, New York, argued for defendant-appellee W.L. Go re & Associates, Inc. With him on the brief was Matthew K. Blackburn , of San Francisco, California. Appealed from: United States District Court for the Northern District of California Judge Jeffrey S. White

## United States Court of Appeals for the Federal Circuit
2009-1006

EDWARDS LIFESCIENCES LLC and ENDOGAD RESEARCH PTY LIMITED, Plaintiffs-Appellants,

v. COOK INCORPORATED, Defendant-Appellee, and W.L. GORE & ASSOCIATES, INC., Defendant-Appellee. Appeal from the United St ates District Court for the Northern District of California in Case No. 03-CV- 03817, Judge Jeffrey S. White.

____________________________

DECIDED: September 22, 2009

____________________________ Before LOURIE, RADER, and MOORE, Circuit Judges

. LOURIE, Circuit Judge

. Edwards Lifesciences LLC and Endogad Re search PTY Limited (collectively, “Edwards”) appeal from the judgment of the United States Distr ict Court for the Northern District of California granting summary judgm ent of noninfringement of several claims of U.S. Patents 6,582,458 (“the ’458 patent”); 6,613,073 (“the ’073 patent”); 6,685,736 (“the ’736 patent”); and 6,689,158 (“the ’158 patent”). See Edwards Lifesciences LLC v. Cook , No. C 03-03817 JSW, 2007 U. S. Dist. Lexis 55634 (N.D . Cal. July 23, 2007) (“ Claim Construction Order ”); Edwards Lifesciences LLC v. Cook , No. C 03-03817 JSW,2008 U.S. Dist. Lexis 21248 (N.D . Cal. Mar. 18, 2008) (“ Order Granting Cook Summary Judgment ”); Edwards Lifesciences LLC v. Cook , No. C 03-03817 JSW, 2008 U.S. Dist. Lexis 70130 (N.D. Cal. Sept. 15, 2008) (“ Order Granting Gore Summary Judgment ”). Because the court correctly construed certai n claim terms and correctly determined that Cook Incorporated’s and W.L. Gore & Associates, Inc.’s (collectively, “Appellees’”) devices did not infringe under those constructions, we affirm. BACKGROUND Edwards owns the four pat ents in suit, which are related and share a common specification. 1 The patents relate to intralumi nal grafts for tr eating aneurisms and occlusive diseases of the bl ood vessels without open surgery. See ’458 patent col.1 ll.11–20. An aneurism is a weakness in a bl ood vessel, such as the aorta, that can cause enlargement or dilation of the vessel. If an aneurism is not repaired, the vessel can rupture, resulting in serious injury or death. To avoid the adverse consequences of open surgery, the medical prof ession has developed techniques for repairing aneurisms endovascularly, or intralumina lly, allowing surgeons to make a small incision and guide a specially made device through the arteri es to the aneurism. In endovascular aneurism repair, a graft reinforced with a metal fr amework, also called a stent-graft, is compressed onto a delivery catheter, which is guided through the artery to the aneurism site. Once at the site, the graft is expanded into position against t he walls of the blood vessel. Stents, and therefore stent-grafts, are generally classi fied into two types, selfexpanding and balloon expandable. A self-expanding st ent or stent-graft is inserted into a blood vessel inside a catheter. Upon rel ease from the catheter, it automatically

1 Because the patents in suit share a common specification, for ease of reference, we will cite only t he specification of the ’458 pat ent throughout this opinion.

2009-1006 2expands to the size of the vessel. See id. at col.1 ll.20–31. A balloon expandable stent or stent-graft, on the other hand , is guided through a catheter on an inflatable balloon until it extends from the ca theter into the vessel. See id. at col.1 ll.54–63. At that point, the balloon is inflated, expandi ng the stent or stent-graft to the size of the vessel, and then the balloon is deflated and removed. See id. The specification describes one method of treating an aneurism using two overlapping grafts, whereby the degree of ov erlap can be adjusted to change the overall length of the graft. ’458 patent col.4 ll.4–17. The specificati on also describes a “trouser graft,” which has a bifurcation at its downstream end, and a supplemental graft that overlaps with one of the legs of the trouser graft. Id. at col.4 ll.18–31. In August 2003, Edwards sued Cook for infri ngement of claims 1–3, 6, 8, 9, 11, 12, 15, and 17–20 of the ’458 patent; claims 1–3, 6, 8, 9, 12, and 14–19 of the ’073 patent; claims 1–4, 6, 9, 10, 12, 14–20, and 22–25 of the ’736 patent; and claims 1, 15, 17, and 18–23 of the ’158 patent. Edwards sued Gore for infri ngement of claims 1–3, 7, 8, 11, 12, and 16–20 ofthe ’458 patent; claims 1–3, 7–9, 13–15, and 17–19 of the ’073 patent; claims 1–3, 7–9, 12–15, and 22–25 of t he ’736 patent; and claims 1, 2, 4–6, 8, 11–14, and 17–22 of the ’158 patent. Claim 1 of the ’458 patent is representative of the asserted claims: 1. A prosthesis comprising: (i) a bifurcated base structure which defines a common flow lumen and a pair of connector legs which define divergent flow lumens from the common flow lumen; and (ii) a graft which is ad apted to be anchored within one of the flow lumens of said bifurcated base structure to fo rm a continuous ex tension of that lumen.

2009-1006 3’458 patent col.6 ll.12–19. All of the asserted independent claims recite two of the following structures (in addition to any reci tations in the preambles): a “graft” (’458 patent claim 1), a “graft body” (’073 patent claim 1; ’736 patent claims 1, 20, 22), a “graft structure” (’158 patent claims 1, 15, 17, 23) , a “bifurcated base st ructure” (’458 patent claim 1), and a “bifurcated base graft structur e” (’158 patent claims 1, 15, 17, 23). Further, in all of the assert ed independent claims, those tw o structures are “anchored” (’458 patent claim 1; ’158 patent claim 1), “attached” (’158 patent claims 15, 17, 23), “attachable” (’736 patent claims 1, 20, 22), or “dockable” (’073 patent claim 1) to each other while they are inside the vessel. 2 In July 2007, the district court construed ce rtain limitations of the asserted claims. The court construed the claim term “graft” to mean “an intraluminal device that is used in unitary fashion to substitute, repair, or r eplace a missing or defective part of a vessel.” Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at * 26. The court reasoned that the graft had to be intraluminal because the specification used the term “graft” as shorthand for “intraluminal graft” and refe rred to an “intraluminal graft” as “the invention.” Id. at *19–22. The court further reas oned that the claimed “graft” could not encompass a traditional surgically implanted vascular graft because all of the disclosed embodiments contained wires, wh ich the parties agreed are a feature of intraluminal grafts. Id. at *22–26. According to the court, t he claimed “graft” could not include a traditional vascular graft also because the claims required that the “graft” components

2 Because the asserted dependent cl aims all depend fr om an asserted independent claim, each of the asse rted claims, both in dependent and dependent, contains one of t hose limitations.

2009-1006 4be used together in a unitary fashion, prevent ing the device from being comprised, in part, of a device that had already been implanted. Id. The court construed the term “graft body” to mean “an artificial device formed of plastic or fabric for us e inside of a vessel.” Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at *37. The court reasoned that the graft bodydid not include malleable wires because, throughout the s pecification, the inventors distinguished between the material of the graf t body and the wires. Id. at *35–37. The court construed the terms “bifurcat ed base structure” and “bifurcated base graft structure” to mean “an intraluminal graft that has one openi ng at its upstream end and two openings at its downstream end and wh ich includes at least one malleable wire.” Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at *33. As with the term “graft,” the court reasoned that the specification demonstrates that the structure must be intraluminal because it descr ibes only embodiments that are placed into a vessel. Id. at *28–29. The court also found that at l east one wire was required because something more than a graft was required to gi ve meaning to the word “base.” Id. at *31–32. Further, although Edwards asserted that claim differentiation should prevent the terms from necessarily including wires bec ause dependent claims later added wires, according to the court, claim differentiation did not apply where, as here, the dependent claim adds other features as well as wires. Id. at *29–31. Finally, the court reasoned that the specification disclai ms grafts with self-expanding wires, so the wires must not be self-expanding but, instead, must be “malleable.” Id. at *32–33. Edwards accused four of Cook’s products of infringing the patents in suit: the Zenith AAA Endovascular Graft, the Zenith Flex AAA Endovascular Graft, the Zenith

2009-1006 5Fenestrated AAA Endovascular Gr aft, and the Zenith TX2 Thoracic TAA Endovascular Graft. Order Granting Cook Summary Judgment , 2008 U.S. Dist. Lexis 21248, at *5. All four accused Cook devices include a fabr ic sleeve reinforced with wires both inside and outside the sleeve. Id. at *5–6. The Cook dev ices are compressed and constrained in a sheat h until positioned in a patient’s vessel, when the sheath is withdrawn. Id. at *6. As the pressure of the sheath is removed from the accused device, the wires expand to fit within the vessel. Id. A balloon may then be used to mold the device to more smoothly conform to the vessel walls. Id. at *7. Edwards also accused two of Gore’s products of infringi ng the patents in suit, the Gore Excluder Bifurcated Endoprosthesis and the Gore TAG Thoracic Endoprosthesis. Order Granting Gore Summary Judgment , 2008 U.S. Dist. Lexis 70130, at *5. Gore’s two accused devices operate similarly to Cook’s. See id. at *5-7. Cook and Gore both moved for summary judgment of noninfringement, arguing t hat their devices could not infringe any of the asserted claims because all of the cl aims, as construed, required malleable wires, and their devices had resilient, self-expanding wires. The court granted both Cook and Gore su mmary judgment of noninfringement, reasoning that Appellees’ devices do not cont ain malleable wires, as required by the claim constructions, but instead contain self-expanding wires. Order Granting Cook Summary Judgment , 2008 U.S. Dist. Lexis 21248, at *11–19; Order Granting Gore Summary Judgment , 2008 U.S. Dist. Lexis 70130, at *9–13. The court stated that selfexpanding wires cannot be “malleable,” as t he specification stat es that “malleable” means they do not “expand[ ] by virtue of their own resilience.” Order Granting Cook Summary Judgment , 2008 U.S. Dist. Lexis 21248, at *12; Order Granting Gore

2009-1006 6Summary Judgment , 2008 U.S. Dist. Lexis 70130, at *10. In response to Edwards’ argument that Appellees’ de vices are a hybrid of self-expanding and balloon expandable wires, the court co ncluded that the evidence showed only that once the wires have expanded on their own, a balloon may be used to finish a seal or straighten out the body of a graft, not further expand the wires. Order Granting Cook Summary Judgment , 2008 U.S. Dist. Lexis 21248, at *13–19; Order Granting Gore Summary Judgment , 2008 U.S. Dist. Lexis 70130, at * 11–13. The court further held that Appellees’ devices could not infringe under the doctrine of equivalents because, if resilient wires could be equival ent to malleable wires, it would vitiate the “malleable” limitation required by the claims, and because the patents disclaimed the use of resilient wires. Order Granting Cook Summary Judgment , 2008 U.S. Dist. Lexis 21248, at *24– 26; Order Granting Gore Summary Judgment , 2008 U.S. Dist. Lexis 70130, at *18. Edwards timely appealed the district cour t’s claim constructions and its grants of summary judgment of noninfring ement in favor of Cook and Gore. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION A. Claim Construction We review claim construction de novo on appeal. Cybor Corp. v. FAS Techs., Inc. , 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). We begin a claim construction analysis by considering the lang uage of the claims themselves. See Phillips v. AWH Corp. , 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc). However, “claims must be read in view of the specification, of which they are a part.” Id. at 1315 (quotation marks omitted). “[A] court should al so consider the patent’s prosec ution history, if it is in

2009-1006 7evidence. . . . Like the specification, the pr osecution history provides evidence of how the [Patent Office] and the inve ntor understood the patent.” Id. at 1317 (citations and quotation marks omitted). Furthermore, courts may “rely on dicti onary definitions when construing claim terms, so long as the di ctionary definition does not contradict any definition found in or asce rtained by a reading of the patent documents.” Id. at 1322–23 (quoting Vitronics Corp. v. Conceptronic, Inc. , 90 F.3d 1576, 1584 n.6 (F ed. Cir. 1996)). Edwards asserts that the district court erred in its constructions of “graft,” “bifurcated base structure,” and “bifurcated base graft stru cture,” all of which were construed (1) to be intraluminal, (2) to require wires, (3) to require that those wires be malleable, and (4) to preclude any resilience from such “malleable” wires. Edwards contends that the court should not have impos ed any of those meanings on the claims. Edwards also argues that t he court should not have im plicitly imposed the same meanings on “graft body.” As an initial matter, we conclude that, although the district court separately analyzed the different terms for the claimed devices, viz. , “graft,” “graft body,” “graft structure,” “bifurcated base st ructure,” and “bifurcated base graft structure,” the court was correct to come to the same conclusions, either implicitly or explicitly, with respect to all of the terms. Each of the terms “g raft,” “graft structure,” “bifurcated base structure,” and “bifurcated base graft structure,” is used interchangeably in the specification and the claims, at least with respect to whether the devices are intraluminal, whether they require wires, whether the wires must be malleable, and whether that malleability precludes the wi res from being resilient. For example, according to the specific ation, one can implant “a graftaccording to the present

2009-1006 8invention which has a bifurcation at its downstream end, a so-called ‘ trouser graft .’” ’458 patent col.4 ll.20-22 (emphases added). The parties do not dispute that the “trouser graft” described in the specification is the support for the claimed “bifurcated base structure” and “bifurcated base gra ft structure,” and the language of the specification clearly supports both structures being “grafts.” See id. at col.4 ll.27–28 (describing a “graft of the ‘t rouser’ type”). Similarly, al though the specification does not mention a “graft structure,” the parties do not ar gue that “graft structure” should be construed differently from “graft.” Finally, as for the construction of “graft body,” Edwards argue s that the “graft body” cannot require wires, espec ially given the court’s cons truction that explicitly declined to require wires in a “graft body.” See Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at *35–37. Because Edwa rds’ argument relates to whether the devices require wires, we will separately discuss it in our discussion of that issue, infra

. However, a “graft body,” as a piece of a “gra ft,” clearly must be intraluminal if the graft as a whole is intraluminal. See ’458 patent abstract (“An intraluminal graft includes a tubular graft body.”); id. at col.1 ll.46–47 (“In a first aspect the present invention consists in an intraluminal graft comprising a tubular gra ft body . . . .”). Theref ore, except in part 2 that discusses the wires r equirement, we will generally di scuss all of the disputed terms together.
1. The Devices Must Be Intraluminal Edwards first argues that the court erred in requiring that all of the claimed devices were necessarily intraluminal. Accord ing to Edwards, the specification modifies the word “graft” with the word “intraluminal,” showing that not all gr afts are necessarily

2009-1006 9intraluminal. Edwards also argues that some but not all of the claims in the four patents in suit include an “intraluminal” limitation, so those without the modifier cannot be so limited, and that the constr uction renders redundant those wi th the modifier. Further, Edwards asserts that during pr osecution, the modifier “intraluminal” was deleted from some of the original claims, thus broadening them. Finally , according to Edwards, the prosecution history demonstrat es that the inventors int ended the claims to cover a surgically implanted graft combined with an intr aluminal graft, as declarations submitted to the Patent Office described a surgically implanted device as a “graft,” and the Patent Office relied on them to allow the claims. Because surgically im planted grafts are not intraluminal, Edwards argues that the cl aimed grafts need not be intraluminal. Cook 3 responds that the court correctly inte rpreted the claimed “graft” devices to be intraluminal. According to Cook, the specification cons istently describes the whole graft as intraluminal. Further, Cook asserts that using the word “i ntraluminal” to modify “graft” in certain claims does not mean that a “graft” by itself can be non-intraluminal, in the context of the patents in suit. Acco rding to Cook, Edwards cannot use the prosecution history to broaden what the specification de scribes. Finally, Cook argues that the Patent Office never relied on the dec larations that Edwards seeks to rely on, as it never issued the requested no tice of interference. Thus, Cook argues, nothing in the prosecution history allows for the inference that the claims cover surgically implanted devices.

3 Although Cook and Gore submitted separate brie fs on appeal, most of their positions are the same. Thus, exc ept for those few poi nts, including the “intraluminal” requirement, which Gore s ubsumed within its “wires” argument, we will address Appellees’ arguments toge ther in this opinion.

2009-1006 10We agree with Cook that, in light of the specification’ s written description, the claimed “graft” devices must all be intralumi nal. Although the construction of a claimed term is usually controlled by its ordinary mean ing, we will adopt an alternative meaning “if the intrinsic evidence shows that the pat entee distinguished that term from prior art on the basis of a particular embodiment, ex pressly disclaimed subject matter, or described a particular embodiment as important to the invention.” CCS Fitness, Inc. v. Brunswick Corp. , 288 F.3d 1359, 1366–67 (Fed. Cir. 2002). Similarly, we will adopt a definition that is different from the ordinary meaning when “the patentee acted as his own lexicographer and clearly se t forth a definition of the di sputed claim term in either the specification or pr osecution history.” Id. at 1366. In this case, the specification consistently uses the words “graft” and “int raluminal graft” inte rchangeably. It states that “ an intraluminal graftas defined above” is carried through a catheter “until the graft extends into the vessel.” ’458 pa tent col.1 ll.57-59 (emphases added); see also id. at col.5 ll.11, 17, 21, 24, 26, 27, 55, 58, 64, 65, 67, col. 6 ll.1, 9 (interchangeably referring to the device identified by numeral 10 as “graft 10” and “intraluminal graft 10.”). The interchangeable use of the two terms is akin to a definition equating the two. Further, the only devices described in the specification are intraluminal, supporting an interpretation that is c onsistent with that description. See SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc. , 242 F.3d 1337, 1341 (Fed. Cir. 2001) (“Where the specification makes clear that the invention does not include a particular feature, that f eature is deemed to be outsi de the reach of the clai ms of the patent, even though the language of the claims , read without reference to t he specification, might be considered broad enough to enc ompass the feature in question.”). For example, as the

2009-1006 11district court noted, the specification st ates that, when an aneurism extends up to or beyond an arterial bifurcation, “i t is possible to place a [trouser] graftaccording to the present invention . . . wholly within t he primary artery .” ’458 patent col.4 ll.18-22 (emphases added); see Claim Construction Order , 2007 U.S. Dist. Lexi s 55634, at *28. Thus, the specification assumed that the gra ft that it was describing was intended to be within the artery, or intraluminal. Moreover, “when the preferr ed embodiment is described in the specification as the invention itself, the claims are not nece ssarily entitled to a scope broader than that embodiment.” Chimie v. PPG Indus. Inc. , 402 F.3d 1371, 1379 (Fed. Cir. 2005) (quotation marks omitted); see Honeywell Int’l, Inc. v. ITT Indus., Inc. , 452 F.3d 1312, 1318 (Fed. Cir. 2006) (construing claim term to include fuel filter because “[o]n at least four occasions, the written description refers to the fuel filter as ‘thi s invention’ or ‘the present invention’”); SciMed , 242 F.3d at 1343 (construing term to include feature characterized as “the present invention”). Here, the specificatio n frequently describes an “intraluminal graft” as “the pr esent invention” or “this invent ion,” indicating an intent to limit the invention to intraluminal devices. See, e.g. , ’458 patent col.1 ll.11–12, 40–41, 45–46, col.3 ll.33, 39–40, 45, col.4 ll.5–6, 20, 56. Finally, the claim language itse lf supports the district court’s construction. Certain claims, namely, all of those reciting “graft bodies,” require that the two graft bodies be attachable “while inside of a vessel .” ’073 patent claim 1; ’736 patent claims 1, 20, 22. Traditional vascular grafts are not implanted “inside of a vessel,” and “intraluminal” specifically means “inside of a vessel.” Therefore, the claims support the court’s interpretation that a “graft body” must be intraluminal rather than being part of a

2009-1006 12traditional vascular graft. Because a “graft body ” is a piece of a “graft,” and no piece of a traditional vascular graft is intraluminal, the claim language further supports the court’s conclusion that all of the claimed “g raft” devices must be intraluminal. We further agree with Cook t hat claim differentiation does not require that “graft” be read differently from “intraluminal graft.” “When different words or phrases are used in separate claims, a differenc e in meaning is presumed.” Nystrom v. TREX Co. , 424 F.3d 1136, 1143 (Fed. Cir. 2005). “However, simp ly noting the difference in the use of claim language does not end the matter. Differ ent terms or phrases in separate claims may be construed to cover the same subject matter where the written description and prosecution history indicate t hat such a reading of the terms or phrases is proper.” Id. Although, as Edwards points out, claim 10 of the ’458 patent recites a “second graft . . . adapted to be intravascularly inserted into a lu men of [a] first graft,” the intravascular insertion and the “intralumina l grafts” are not redundant. Inst ead, an “intraluminal graft” describes the ultimate loca tion of the graft, whereas the intravascular insertion describes the process of moving the graft to that location. In other words, a device could theoretically be “intrava scularly inserted” but ultimate ly reside outside of the vessel, such as inside the heart. Even if the claim constr uction had rendered the dependent claim redundant, the doctr ine of claim differentiation does not require us to give the “graft” devices their broadest possibl e meaning. We may instead limit “grafts” to “intraluminal” devices, as demanded by the specification. See id. As for Edwards’ prosecution history argum ents, we do not find them persuasive. Edwards points out that, during prosecuti on, the inventors amended claim 12 (which ultimately issued as claim 1 of the ’073 patent) and its dependent claims to delete the

2009-1006 13word “intraluminal,” modifying “graft.” See J.A. 3828–32. Thus, Edwards argues, the inventors specifically intended for “graft” to have a meaning broaderthan “intraluminal graft.” However, the accompanying remar ks stated that “[i]ndependent claim 12 defines

an intraluminal graft.” J.A. 3854 (emphasis added) . Thus, the inventors’ statements urged a change in claim language that did not a ffect the breadth of the claim, and we cannot allow the claim to now be broadened. See Alloc, Inc. v. Int’l Trade Comm’n , 342 F.3d 1361, 1371–72 (Fed. Cir . 2003) (Deletion of “play” from claims, together with remarks stating that “play” feature was nevertheless present, precluded patentee from arguing that “play” was not a limitation of the claimed system .). Edwards also asserts that the inventors’ submission of two declara tions describing a traditional vascular graft as a “graft” overrides the court’s construction. See J.A. 2883 ¶ 4, 2925 ¶ 6. However, the declarations to which Edwards refers were submitted only for the purpose of provoking an interference. See 37 C.F.R. § 1.608(b) ( 2000) (then-existing rule establishing how the Patent Office coul d declare an interfer ence based on certain evidence). Edwards does not dispute that t he Patent Office never issued a notice of interference in this case, and thus we ca nnot infer that the examiner relied on the declarations for any reason. We therefore agree with Cook that t he prosecution history does not affect the interpretation that all of the claimed “graft” devices must be intraluminal.
2. Intraluminal Device s Must Have Wires Edwards also asserts that, even if the claimed devices are required to be intraluminal, such intraluminal devices nee d not have wires. According to Edwards, certain claims require wires, and others do not. Thus, Edwards argues, when the

2009-1006 14inventors intended not to require wires, theypurposely did not include wires in those claims. Appellees respond that the di strict court correctly in terpreted the claims to include wires, as Edwards admi tted that wires provide the structure that permits the graft components to overlap and are requir ed to anchor the device. According to Appellees, Edwards’ claim differentiation ar gument fails because it does not trump the clear import of the specific ation and because the claims t hat add wire limitations also add further limitations, so t he dependent claims are narrower not only because of the addition of wires. We agree with Appellees that the claimed graft devices must have wires because they are intraluminal and bec ause each of the claims recites an attachment that requires wires. As the district court noted, t he parties agreed at trial that intraluminal devices require wires. Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at *22; Order Granting Cook Summary Judgment , 2008 U.S. Dist. Lexis 2124 8, at *13 n.1. Further, every embodiment described in the specification and shown in the drawings includes wires. See, e.g. , ’458 patent col.1 ll.46–49 (descr ibing “the present invention” as including wires); id. at col.1 l.64–col.2 l.61 (de scribing shapes of wires); id. at col.3 ll.8–32 (describing interaction between wires and graft body); id. at col.3 ll.39-41 (describing X-ray detectibility of wires); id. at col.3 l.51–col.4 l. 3 (describing ends of wires); id. at col.5 ll.26–57 (descr ibing specific details and spacing of wires 17); id. at col.6 ll.5–7 (describing pr ocess of expanding wires). Every claim also has a requirement that the two graft devices be “anchored,” “attac hed,” “attachable,” or “dockable” to each other whil e they are inside the vessel. As the court noted, the

2009-1006 15parties agreed that only wire s perform that function. Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at *38 (quoting Edwards’ statement t hat “[t]he parties seem to be in agreement that the struct ure that allows the anchoring to occur is the wires”). Moreover, even though the claimed “graft body” does not itself include wires, see Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at * 35–37, the claims that recite “graft bodies” also all recite that the two “graft bodies” are “dockable” (’073 patent claim 1) or “attachable” (’736 patent claims 1, 20, 22) to each other. Because the parties agree that such an attachment relationship requires wires, we agree with the district court that each of the claimed “g raft” devices must include wires. We disagree with Edwards that claim differentiation requires us to hold otherwise. According to Edwards, because, for example, claim 2 of the ’736 patent adds “a wire structure” to the graft of claim 1, the graft of claim 1 must be broader than a graft with a wire structure. Ho wever, claim differentiation is a rule of thumb that does not trump the clear import of the specification. See Netcraft Corp. v. eBay, Inc. , 549 F.3d 1394, 1400 n.1 (F ed. Cir. 2008) (“While claim diffe rentiation may be helpful in some cases, it is just one of many tools used by courts in the analysi s of claim terms.”). Here, the specification and the parties’ agreem ent in the district court make clear that the claimed graft devices require wires. 3. The Wires in Intraluminal Devices Must Be Malleable Edwards next argues that, even if all of the claimed graft devices require wires, those wires need not be malleable but may instead be resilient. According to Edwards, the word “malleable” does not appear in any of the claims. Further, Edwards argues that claim 14 of the ’158 patent requires resilient wire, so the inventors could not have

2009-1006 16disclaimed resilient wire. Ed wards also asserts that, in the specification, the word “malleable” only describes three particular embodiments and does not limit the whole invention. Further, according to Edwards, the alleged disclaimer in the specification disparaging the prior art’s lack of precise control of the graft’s expansion is not limited to resilient wires. Finally, Edwards argues that“malleable” wires were removed from some claims during prosecution, showing the intent for a broader def inition of “wires,” and the inventors requested an interfer ence with another application that described resilient, self-expanding wires, showing an intent to claim such wires. Appellees respond that the court correctly required the wire in the claimed “graft” devices to be malleable, as the inventors cl early disclaimed resilient wire throughout the written description, incl uding in the description of the prio r art and in requiring that the wires be able to bell outward by balloon ex pansion. Further, according to Appellees, the resilient skirt required by claim 14 of t he ’158 patent is separate from the other wires, which must be malleable. Appellees asse rt that the prosecut ion history of claim amendments is trumped by the specification’s clear disavo wal of scope. Appellees argue that, in attempting to distinguish claims that did not expres sly require malleable wires over prior art, the in ventors stated that the wires were requi red to be malleable. We agree with Appellees that the wires required by the claims must be malleable, as the inventors disclaimed the use of resilient, or self-expanding, wires. As the court properly noted, the inventors disparaged prior art resilient wires in their “background art” section of the specification. The specificati on states that “[i]t is known to form . . . an intraluminal graft of a sleeve in which is disposed a plurality of self expanding wire stent s. . . . There are a number of pr oblems associated with such known

2009-1006 17grafts.” ’458 patent col.1 ll.15–33; see Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at *32. The problems that the specificat ion then discusses include a “lack of precise control of the expansio n of the graft in the lumen. ” ’458 patent col.1 ll.36–37;

see Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at*32. The specification then describes the wires of the invention as malleable and states that the device is expanded by use of balloons. See, e.g. , ’458 patent col.1 ll.49 , 60–63, col.2 ll.8–15, col.3 ll.8–9, col.5 ll.32–36, 58–60, 66–67, col.6 ll.5–7; see also Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at *32–33. “Where the general summary or description of the invention de scribes a feature of the invent ion . . . and criticizes other products . . . that lack that same feature, this operates as a clear disavowal of these other products . . . .” Astrazeneca AB v. Mut. Pharm. Co. , 384 F.3d 1333, 1340 (Fed. Cir. 2004). Thus, as the court properly concl uded, when the claims ar e read in light of the specification, “a person of ordinary skill in the art woul d clearly understand that this invention requires malleable, ra ther than resilient, wires.” Claim Construction Order , 2007 U.S. Dist. Lexis 55634, at *33. Although, as Edward s points out, claim 14 of the ’158 patent requires “a downstream end of the bifurcated base graft stru cture [that] is provided with at least one resilient reinforcement wire,” that resilient wire is in t he skirt portion of the graft described in the specification. As the spec ification states, “the skirt may be provided with at least one resilient annular reinforcement wire. . . . This . . . arrangement is particularly suitable in the case of ‘trouser gr afts’ wherein one leg of the graft will have a skirt which cannot be expanded by a balloon catheter.” ’458 patent col.4 ll.41–48. As the specification is careful to explain, only the skirt “c annot be expanded by a balloon

2009-1006 18catheter,” as all of the rest of the graft is made of ma lleable wire that is normally expanded by a balloon catheter. Edwards’ prosecution hist ory argument also does not alter our conclusion. Although, during prosecution, the inventors canceled clai ms requiring “malleable wires” and replaced them with claims requiring only “wires,” they conduct ed the prosecution as if the wires were required to be malleable. As Appellees point out, in attempting to distinguish claims without an express malleabl e wire limitation over certain prior art, Edwards stated that the writt en description “expressly teaches that the wire forms are malleable, deformable, non-springy material” and that they are no t “self-expanding.” Thus, as with the “intraluminal” interpretation discussed in part 1 supra , the change in claim language does not affect the breadth of the claims because the inventors’ statements indicated that t he claims remained narrow. See Alloc , 342 F.3d at 1371–72. Edwards cannot now reclaim what it disc laimed during prosecution and throughout the specification, viz. , resilient wires.
4. Malleable Wires and Resilient Wi res Are Mutually Exclusive Finally, Edwards argues that “malleable” wires, even if required, may still display some resilience. According to Edwards, t he court erred by rejecting the plain meaning of “malleable” to hold that t he inventors’ alleged definition in the specification should apply. Edwards asserts that the inventor acting as his ow n lexicographer ap plies only to words the inventor actually used in the clai ms. Further, Edwards argues, the inventors gave their alleged definition only in the cont ext of a preferred embodiment, so it does not limit the definition of “ma lleable” in all contexts in the specification. Finally,

2009-1006 19according to Edwards, even unde r the alleged definition in th e specification, a wire that exhibits some resilience but requires ballo on expansion to expand fully is malleable. Cook and Gore respond that, as used in the specification, “malleable” wires and resilient wires are mutually exclusive. A ccording to Appellees, the inventors disclaimed the idea that resilient wires can also be “ma lleable.” Appellees also argue that the inventors defined “malleable” wires in the specification as “not resilient to any substantial extent,” and theycriticized known self-expand ing wires. According to Appellees, a court must follo w a patentee’s definition irres pective of where in the specification it appears. Further, Appellees argue tha t, during prosecution, the inventors told the Patent Office that ma lleable and self-expanding materials were mutually exclusive. We agree with Appellees that, in the context of the spec ification, malleable wires and resilient wires are mutually exclusive. As the court corre ctly held, the specification defines “malleable” to exclude an y substantial resilience, and that definition overrides any ordinary meaning of the word “malleable” that might allow for substantial resilience. The specification states that the wires “a re maleable [sic] and may be bent into any desired shape, ie [sic] they are not resilient to any substantial extent so that they have to be physically expanded into contact with the aorta rather than expanding by virtue of their own resilience.” ’458 pa tent col.5 ll.32–36. The district court correctly reasoned that such a definition preclud ed any substantial resilience. See Order Granting Cook Summary Judgment , 2008 U.S. Dist. Lexis 21248, at *12–13; Order Granting Gore Summary Judgment , 2008 U.S. Dist. Lexis 70130, at * 10–11. Contrary to Edwards’ argument, the location within the specification in whic h the definition appears is

2009-1006 20irrelevant. See Boss Control, Inc. v. Bombardier Inc. , 410 F.3d 1372, 1378 (Fed. Cir. 2005) (following inventors’ def inition, even though it appeared in conn ection with the description of a preferr ed embodiment). As the court correctly reasoned, the specification’s use of “i.e.” signals an intent to define the word to which it refers, “malleable,” and that definition was not limited to the em bodiment being discussed. Furthermore, as discussed in part 3, supra , the inventors disclaimed the idea that resilient wires could be used. As Edwards points out, we do not ordinarily construe words that are not in claims. See generally CCS Fitness , 288 F.3d at 1366 (“[T]he claim term will not receive its ordinary meaning if the pat entee acted as his own lexic ographer and clearly set forth a definition of the disputed claim term in either the specificati on or prosecut ion history.” (emphases added)). However, in this case, the court correctly looked to the words used in the specification, including the word “ma lleable,” to provide an initial construction. After the court provided that construction, t he parties disputed the definition of the word “malleable” in the claim construction, but that definition was elucidated by the specification. Thus, the court was similarly co rrect to look to the s pecification to clarify its initial construction. We therefore agree with the di strict court that the “graft ” terms must include wires that are malleable, and that the term “malleable” in the context of the patents in suit precludes the use of only substantially resilient wires. B. Infringement Edwards asserts that, even under the court’s claim cons truction, the court erred in granting summary judgment ofnoninfringement in favor of Cook and Gore. Edwards

2009-1006 21argues that, even if the claims all requir ed at least one malleable wire that can physically expand “into cont act with the aorta,” a reasonable jury could find infringement. According to Edwards, Ap pellees’ wires are def ormed under pressure inside their sheath and can be bent durin g use. Further, Edwa rds argues, Appellees’ devices are expanded with a balloon into contact with the aorta. Thus, Edwards contends that it presented sufficient eviden ce of infringement to preclude summary judgment. Edwards also asserts that, at a minimu m, fact issues exist with respect to infringement under the doctrine ofequivalents. According to Edwards, whether a wire is self-expanding or balloon expandable is not relevant to whether it performs the fundamental function of the clai ms, which is allowing two separ ate parts of a graft to be overlapped. Further, Edwards argues that t he accused devices sati sfy the rest of the function-way-result test because the two parts of the accused grafts overlap in the same way, by expanding, to achieve the same result of a seal between graft portions. Appellees respond that Edwards has admi tted that the accuse d products selfexpand and therefore do not have “malleable” wir es. Appellees argue that the use of a molding balloon, after the devices have se lf-expanded, does not change the fact that the devices are resilient and therefore not ma lleable. Indeed, according to Appellees, a molding balloon is used in a different way from an expansion balloon. Gore further asserts that Edwards merely speculates an d offers no proof that the molding balloon causes further expansion after the devices have self-expanded. Gore argues that it hasshown that the wires are oversized and thus will always touch the vessel wall after selfexpansion, before the use of the molding balloon. Go re also responds that Edwards

2009-1006 22cannot rely on the doctrine of equivalent s because the inventors defined “malleable wires” as functionally the opposite of res ilient wires and because Edwards cannot recapture by the doctrine of equivalents what the inventors disclaimed. We agree with Appellees that the court did not err in granting summary judgment of noninfringement. We review de novo the court’s grant of summary judgment, drawing all reasonable inferences in favor of the nonnmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). The court co rrectly held that, “[e]ven taking the evidence regarding the use of the molding balloon in t he light most favorable to Edwards, . . . it demonstrates only thatonce the accused devices have been placed within a vessel and t he wires have expanded on their own , the molding balloon may be used to finish a seal or straighten out the fabric body of a graft.” Order Granting Cook Summary Judgment , 2008 U.S. Dist. Lexis 21248, at *18–19; see Order Granting Gore Summary Judgment , 2008 U.S. Dist. Lexis 70130, at *12–13. In other words, even if a molding balloon is used to smooth out the dev ice after it has self-expanded, the selfexpanding wires are pr imarily resilient, and therefore not malleable as required by the court’s claim construction. The use of a bal loon to alter the shape of the wires does not change their primary characteristic of resilie nce, and the court was correct to conclude that no reasonable jury could find literal in fringement by either Cook or Gore. The court was also correct to grant summary judgment of noninfringement under the doctrine of equivalents. As we have discussed supra , the inventors disclaimed resilient wires and cannot use the doctrine of equivalents to recapture the disclaimed
scope. See Honeywell , 452 F.3d at 1321 (rejecting pa tentee’s reliance on equivalency to allow claims to encompass carbon fibers when “such fibers were disavowed”). We

2009-1006 232009-1006 24 therefore agree with t he district court thatno reasonable jury could find infringement under the doctrine of equivalents. We have considered Edwards’ rema ining arguments and do not find them persuasive. CONCLUSION Accordingly, the judgm ent of the district co urt is affirmed. AFFIRMED