New created breakdown supporting the new region court’s accessibility liquid alternatively than simply substances such as graphite and you will polyethylene once the standard to own construing outdoors dissolving compound. ” ‘225 patent col. step 3 ll. 33-45. These impediments are the restricted method of getting fresh air-simply because of its poor solubility-about physiological drinks encompassing the latest detector. Id. Since the fresh air dissolving compound qualities to answer this problem by the focusing outdoors on detector, one to substance need to be one in which outdoors have a heightened solubility than simply it will about close physical fluids. Find Fruit Comput., Inc. v. Articulate Sys., Inc., 234 F.3d fourteen, twenty five (Given. 2000) (“[A] claim must be interpreted in light of theories of the composed description and you can reason for the new development discussed therein.”).
Notably, the solubility out-of oxygen throughout the encompassing biological drinks was close to your solubility away from outdoors in the water, 1 and then make drinking water a suitable proxy to the liquids
More over, the new created description disparages drinking water given that a terrible oxygen dissolving compound as compared to the types of ingredients new patent refers to because the providing given that an oxygen dissolving material for purposes of the latest invention. Come across, e.g., ‘225 patent col. ten ll. 25-30 (“Once the perfluorocarbon is actually emulsified into small dust, you will find a sexual relationship involving the clean air carrying perfluorocarbon and you can the fresh new fresh air-demanding chemical. Which constraints the length you to definitely fresh air need certainly to diffuse through a poor clean air service provider such as drinking water.”); col. thirteen ll. 2-cuatro (“A bonus would be the fact steroid drugs, such as for instance perfluorocarbons, are a lot ideal during the dissolving oxygen than is actually liquid.”). I therefore concur with the section courtroom that, because of the composed dysfunction, drinking water is the right benchmark getting construing oxygen dissolving click resources substance.
Flipping beside the prosecution background, nothing therein decides use of an option benchmark otherwise design. Arbmetrics argues one to graphite, nylon, polyethylene, and you can polystyrene, we.e., substances presumably disclaimed while in the prosecution, look for Appellant’s Br. during the 23, would be the appropriate recommendations getting construing the word oxygen dissolving substance. However, usage of this type of ingredients once the benchmarks perform increase the states beyond what’s shared on authored breakdown: graphite, nylon, polyethylene, and polystyrene all of the features straight down oxygen solubility than simply water. dos Get a hold of J.A beneficial. 3483 (“Clean air isn’t preferentially soluble in the graphite-it is scarcely dissolvable at all. Nor was oxygen instance soluble in the nylon, polyethylene, or polystyrene.”). Properly, Arbmetrics’s suggested framework is impermissible given that “[r]epresentations [made] through the prosecution try not to enrich the message of your specification.” Biogen, Inc. v. Berlex Laboratories., Inc., 318 F.3d 1132, 1140 (Fed. 2003); pick together with Honeywell Int’l, Inc. v. ITT Indus., Inc., 452 F.three dimensional 1312, 1319 (Fed. 2006) (“Where, because the right here, the latest authored malfunction obviously relates to just what his advancement is actually, a term because of the a great patentee during the prosecution he intends their states security more than exactly what his requirements discloses is actually titled to help you nothing pounds.”). Arbmetrics’s suggested construction, hence utilizes a benchmark which is “barely dissolvable at all,” is additionally evidently contradictory required of your creativity: to manufacture an air tank regarding glucose alarm through fool around with out of a compound with a high outdoors solubility.
Last, we can’t take on Arbmetrics’s proposal to include permeability as an alternative so you’re able to solubility regarding build from oxygen dissolving compound. Appellant’s Br. from the twenty-six, twenty eight (submitting one either “highest fresh air solubility or more fresh air permeability” may be used since the tips regarding a substance’s outdoors dissolving characteristics (importance extra)). While the authored malfunction may consider clean air dissolving ingredients having both large outdoors solubility and permeability, get a hold of ‘225 patent col. 8 ll. 48-54, absolutely nothing throughout the says, composed dysfunction, otherwise prosecution records supports an understanding of “oxygen dissolving substance” because having highest oxygen permeability instead higher oxygen solubility. As a result, i buy into the region legal you to “permeability has no input the building with the term.” Allege Framework Order, 2019 WL 7290541, in the *8.