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`Matthew D. Powers (Bar No. 104795)
`matthew.powers@tensegritylawgroup.com
`William P. Nelson (Bar No. 196091)
`william.nelson@tensegritylawgroup.com
`TENSEGRITY LAW GROUP, LLP
`555 Twin Dolphin Drive, Suite 650
`Redwood Shores, CA 94065
`Telephone: (650) 802-6000
`Facsimile:
`(650) 802-6001
`
`Azra Hadzimehmedovic (Bar No. 239088)
`azra@tensegritylawgroup.com
`Aaron M. Nathan (Bar No. 251316)
`aaron.nathan@tensegritylawgroup.com
`Samantha A. Jameson (Bar No. 296411)
`samantha.jameson@tensegritylawgroup.com
`Alton L. Hare (admitted Pro Hac Vice)
`alton.hare@tensegritylawgroup.com
`TENSEGRITY LAW GROUP, LLP
`8260 Greensboro Drive, Suite 260,
`McLean, VA 22102
`Telephone: (703) 940-5031
`Facsimile:
`(650) 802-6001
`
`Attorneys for Defendant AXONICS, INC.
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`SOUTHERN DIVISION
`
`
`MEDTRONIC, INC.; MEDTRONIC
`PUERTO RICO OPERATIONS CO.;
`MEDTRONIC LOGISTICS, LLC;
`MEDTRONIC USA, INC.,
`
`
`Plaintiff,
`
` Case No. 8:19-cv-02115-DOC-JDE
`
`DEFENDANT AXONICS, INC.’S
`RESPONSIVE CLAIM
`CONSTRUCTION BRIEF
`
`Judge: Hon. David O. Carter
`
`
`AXONICS MODULATION
`TECHNOLOGIES, INC.,
`
`
`v.
`
`Defendant.
`
`
`
`
`
`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
`
`
`
`
`
`Case No. 8:19-cv-02115-DOC-JDE
`
`Axonics Exhibit 1030
`Axonics, Inc. v. Medtronic, Inc.
`IPR2020-00712
`
`Page 1 of 31
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`Case 8:19-cv-02115-DOC-JDE Document 138 Filed 07/15/22 Page 2 of 31 Page ID #:7846
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`I.
`II.
`
`TABLE OF CONTENTS
`
`INTRODUCTION ......................................................................................... 1
`ARGUMENT ................................................................................................ 1
`A.
`Claims 1, 7, 11, 18, 20, 21) ................................................................. 1
`B.
`“indicative of” (324 Patent Claims 1, 12, 20) ..................................... 8
`C.
`between the primary coil and the secondary coil” (324 Patent Cl. 5) 12
`“programmable limit” (112 Patent Claims 1, [8], 22) ....................... 15
`D.
`E.
`15, 18; 758 Patent Claims 1, 2, 4, 5, 6, 8, 9, 10, 12) ......................... 19
`F.
`Claims 2, 6, 10; 069 Patent Claim 7) ................................................ 23
`III. CONCLUSION ........................................................................................... 25
`
`“plurality of tine elements” (756 Patent Claim 14; 314 Patent
`
`“adjustable assembly adapted to adjust efficiency of energy transfer
`
`“value associated with said current” (148 Patent Claims 3, 6, 9, 12,
`
`“wherein said [predetermined] current [passing through / in] said
`internal power source declines as said voltage of said internal
`power source increases during a charging cycle” (758 Patent
`
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`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
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`i
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`Case 8:19-cv-02115-DOC-JDE Document 138 Filed 07/15/22 Page 3 of 31 Page ID #:7847
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`
`Cases
`
`TABLE OF AUTHORITIES
`
`3rd Eye Surveillance, LLC v. City of Fort Worth,
`Case No. 6:14-cv-00725, Dkt. No. 120 (E.D. Tex. June 8, 2016) ............................. 23
`Audionics Sys. v. AAMP of Fla., Inc.,
`No. CV 12-10763 MMM (JEMx), 2013 U.S. Dist. LEXIS 188664, (C.D. Cal. Sep.
`12, 2013 ............................................................................................................... 15, 16
`Aylus Networks, Inc. v. Apple Inc.,
`856 F.3d 1353 (Fed. Cir. 2017) ................................................................................. 24
`C.R. Bard, Inc. v. Boston Scientific Corp.,
`No. 99-1304, 2000 U.S. App. LEXIS 16090, 2000 WL 915241, (Fed. Cir. July 7,
`2000) .......................................................................................................................... 16
`Cias, Inc. v. All. Gaming Corp.,
`504 F.3d 1356 (Fed. Cir. 2007) ................................................................................. 13
`Fractus S.A. v. TCL Corp. et al.,
`Slip Op 2021 WL 2983195 (E.D. Tex. Jul. 14, 2021) ................................................ 23
`GE Lighting Sols., LLC v. AgiLight, Inc.,
`750 F.3d 1304 (Fed. Cir. 2014) ................................................................................... 1
`In re Bookstaff,
`606 F. App’x 996 (Fed. Cir. 2015) ............................................................................ 11
`Indacon, Inc. v. Facebook, Inc.,
`824 F.3d 1352 (Fed. Cir. 2016) ............................................................................. 5, 17
`Info-Hold, Inc. v. Muzak Holdings LLC,
`No. 1:11-cv-283, 2012 U.S. Dist. LEXIS 128424, (S.D. Ohio Sep. 10, 2012) ......... 16
`InterDigital Communs., LLC v. ITC,
`690 F.3d 1318 (Fed. Cir. 2012) ................................................................................... 5
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014) ................................................................................. 20
`Leggett & Platt, Inc. v. Hickory Springs Mfg. Co.,
`285 F.3d 1353 (Fed. Cir. 2002) ................................................................................... 2
`Medtronic, Inc. v. Guidant Corp.,
`Nos. 00-1473 (MJD/JGL), 00-2503 (MJD/JGL), 2004 U.S. Dist. LEXIS 10020 (D.
`Minn. May 25, 2004) ................................................................................................... 2
`
`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
`
`
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`ii
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`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .................................................................................................... 8
`NeoMagic Corp. v. Trident Microsystems, Inc.,
` 287 F.3d 1062 (Fed. Cir. 2002) ................................................................................ 21
`Pharma Tech Sols., Inc. v. LifeScan, Inc.,
`942 F.3d 1372 (Fed. Cir. 2019) ................................................................................... 4
`Phillips v. AWH Corp.,
`415 F.3.d 1303 (Fed. Cir. 2005)(en banc) ................................................................... 4
`PSN Illinois, LLC v. Ivoclar Vivadent, Inc.,
`525 F.3d 1159 (Fed. Cir. 2008) ................................................................................. 14
`Simo Holdings, Inc. v. H.K. uCloudlink Network Tech.,
`983 F.3d 1367 (Fed. Cir. 2021) ................................................................................. 14
`SRI Int'l v. Matsushita Elec. Corp. of Am.,
`775 F.2d 1107 (Fed. Cir. 1985) (en banc) ................................................................ 21
`Technology Properties Ltd. v. Huawei Technologies Co.,
`849 F.3d 1349 (Fed. Cir. 2017) ............................................................................. 4, 18
`Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp.,
`587 F.3d 1339 (Fed. Cir. 2009) ................................................................................. 22
`Wenger Mfg. v. Coating Mach. Sys.,
`239 F.3d 1225 (Fed. Cir. 2001) ................................................................................... 4
`Xilinx, Inc. v. Altera Corp.,
`No. 93-20409 SW, 1998 U.S. Dist. LEXIS 14774 (N.D. Cal. July 30, 1998) .......... 17
`
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`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
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`
`Axonics’ Proposed Construction
`Two or more structures to which one or
`more tines are attached
`
`INTRODUCTION
`Medtronic’s opening brief only highlights that its proposed constructions are
`driven by its attempt to find infringement, rather than the claim language, the
`specification or file history, or the fundamental purposes of the purported inventions.
`Where inconvenient, Medtronic simply ignores the intrinsic record. Axonics’ proposed
`constructions, which respect that record, should be adopted.
`II. ARGUMENT
`A.
`“plurality of tine elements” (756 Patent Claim 14; 314 Patent Claims
`1, 7, 11, 18, 20, 21)
`Medtronic’s Proposed Construction
`Two or more parts or portions that include
`tines along the length of the lead body and
`which may form a single structure
`Medtronic’s opening brief offers little to support its contention that a “plurality
`of tine elements” (two or more tine elements) can be met by a single structure. None of
`what it does say has merit; as Axonics demonstrated in its opening brief, common
`sense, the plain language of the claims in view of the specification, and the prosecution
`history all confirm that a “plurality” of tine elements can be met only by two or more
`structures to which tines are attached, as Axonics has proposed.
`Medtronic first points to passing references in the specification that it is “within
`the scope of the present invention to form the tine elements . . . as a single structure”
`(314 Patent, 13:4-11) or “integrally” (id. at 12:37-45) to contend that Axonics is
`“attempting to limit the claims to only certain depicted embodiments.” Medtronic Br.
`at 6. But as demonstrated in Axonics’ opening brief, the intrinsic evidence provides a
`“clear indication . . .that the patentee intended the claims to be so limited,” in the
`words of Medtronic’s own cited authority. GE Lighting Sols., LLC v. AgiLight, Inc.,
`750 F.3d 1304, 1309 (Fed. Cir. 2014) (stating that such a “clear indication in the
`intrinsic record” would support excluding embodiments disclosed in specification).
`The intrinsic record abounds with clear indications that these brief passages are
`DEF. RESPONSIVE CLAIM
`1
`Case No. 8:19-cv-02115-DOC-JDE
`CONSTR. BR.
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`I.
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`at most an unclaimed embodiment. This record includes the claim language itself,
`which recites a “plurality” of tine elements – i.e., two or more of them. In conjunction
`with the word “plurality,” the claims also recite “tine elements” in the plural form,
`again confirming that the claims require two or more such elements and exclude a
`single one. Leggett & Platt, Inc. v. Hickory Springs Mfg. Co., 285 F.3d 1353, 1357
`(Fed. Cir. 2002) (“[T]he claim recites ‘support wires’ in the plural, thus requiring more
`than one welded ‘support wire.’”). And where the claims recite a “tine element” in
`singular form, they refer to “each tine element” (see, e.g., 314 Claims 1, 11, 18; 756
`Claim 14), thereby referring to them as distinct, individual structures within a group of
`multiple such structures. See, e.g., Medtronic, Inc. v. Guidant Corp., Nos. 00-1473
`(MJD/JGL), 00-2503 (MJD/JGL), 2004 U.S. Dist. LEXIS 10020, at *116 (D. Minn.
`May 25, 2004)(“The ordinary meaning of the word ‘each’ is ‘every one of two or more
`considered individually or one by one.’”).
`these claimed
`to
`Moreover,
`the specification sections corresponding
`embodiments also confirm that the claimed “plurality of tine elements” excludes a
`single structure. They disclose that a “plurality” of such tine elements refers to
`multiple tine elements, “each” tine element arranged in a “tine element array” with
`the others.
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`See, e.g., 314 Patent, 6:5-8 (“The fixation mechanism comprises a plurality M of tine
`elements arrayed in a tine element array along a segment of the lead proximal to the
`
`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
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`2
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`stimulation electrode array.”); 6:42-50 (“Preferably, each of the M tine elements
`comprises a plurality N tines . . .”); 10:12-47; Abstract.
`Medtronic’s brief ignores completely the prosecution history for this family of
`patents, wherein the inventors repeatedly told the Patent Office that a “plurality of tine
`elements” excludes tine elements formed as a single structure (as Medtronic’s
`preferred specification passages suggest) and disclaimed any meaning of the term that
`would include such a structure. As demonstrated in Axonics’ opening brief and
`accompanying expert declaration, in a parent application, Medtronic previously sought
`claims that would have encompassed a single structure, by reciting “a tine element.”
`Ex. 20 at MDT-00136385 (10/30/2006 submitted claims at 20). Irazoqui Decl. ¶50.
`Medtronic was forced to amend those claims in view of an Examiner’s rejection based
`on prior art (“Ollivier”) that disclosed just such a single structure.
`Ollivier Fig. 1 – “a tine element”
`
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`To distinguish Ollivier, Medtronic amended the claims to recite “a plurality of
`tine elements,” [Ex. 20 at MDT-00136296 (9/1/09 Amendment at 2)] and told the
`Patent Office that “Ollivier fails to disclose or suggest an implantable medical lead
`comprising a plurality of tine elements extending from a lead body.” Id. at MDT-
`00136302-304. Medtronic’s statements here constitute clear and unmistakable
`disclaimer of a claim scope that would include a single structure within “plurality of
`tine elements.”
`As demonstrated in Axonics’ opening brief, Medtronic later again unmistakably
`confirmed that a “plurality of tine elements” excludes a single structure, using words
`DEF. RESPONSIVE CLAIM
`3
`Case No. 8:19-cv-02115-DOC-JDE
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`that leave no doubt. Following an Examiner’s rejection of the amended claims to a
`“plurality of tine elements” in view of the “Schroeppel” reference which disclosed, as
`a single structure, a tine element (see Irazoqui Decl. ¶¶57-58), Medtronic told the
`patent office that “Schroeppel only discloses a single tine element with tines that share
`a longitudinal position along the length of the lead and fails to disclose or suggest that
`the lead may include a plurality of tine elements. . . .” Ex. 20 at MDT-00136215
`(6/28/10 Appeal From Final Office Action at 11). See also id. at MDT-00136217.
`Medtronic’s pending responsive brief may well quibble with what Schroeppel
`discloses, but that is irrelevant. Through its own words, Medtronic, with “clarity and
`deliberateness”, told the patent office that a “plurality of tine elements” did not include
`a single tine structure in its scope. See Technology Properties Ltd. v. Huawei
`Technologies Co., 849 F.3d 1349, 1359 (Fed. Cir. 2017) (“The question is what a
`person of ordinary skill would understand the patentee to have disclaimed during
`prosecution, not what a person of ordinary skill would think the patentee needed to
`disclaim during prosecution.”). It must now live with the effect of those statements,
`and may not recapture the single structure it surrendered by amendment and by
`argument, either literally or under the doctrine of equivalents. Pharma Tech Sols., Inc.
`v. LifeScan, Inc., 942 F.3d 1372, 1380 (Fed. Cir. 2019) (prosecution history estoppel
`“prevent[s] a patentee from using the doctrine of equivalents to recapture subject
`matter surrendered from the literal scope of a claim during prosecution.”).
`
`Medtronic next points to unasserted Claim 1 of the 756 Patent to contend that
`“[w]here the patentee intended to limit the claims to a ‘plurality of tine elements’
`including ‘two or more structures,’ it expressly said so.” Medtronic Br. at 7. Other than
`a generic reference to Phillips, Medtronic cites no support for its argument, but it
`appears to be relying on a distorted understanding of “claim differentiation,” which
`assumes that “each claim in a patent is presumptively different in scope.” Wenger
`Mfg. v. Coating Mach. Sys., 239 F.3d 1225, 1233 (Fed. Cir. 2001). Medtronic’s
`
`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
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`argument fails for numerous reasons. First, the Federal Circuit has “declined to apply
`the doctrine of claim differentiation” to independent claims “where, as here, the claims
`are not otherwise identical in scope.” Indacon, Inc. v. Facebook, Inc., 824 F.3d 1352,
`1358 (Fed. Cir. 2016). See also InterDigital Communs., LLC v. ITC, 690 F.3d 1318,
`1324 (Fed. Cir. 2012) (claim differentiation “is at its strongest . . .where the limitation
`that is sought to be ‘read into’ an independent claim already appears in a dependent
`claim.’”). Claim 1 of the 756 Patent differs substantially from Claim 14, and the claims
`of the 314 Patent, including for example that Claim 1 recites additional method steps
`and claims N tines rather than a “plurality of tines.” Moreover, the Federal Circuit has
`made clear that claim differentiation is only a “tool,” and “cannot enlarge the meaning
`of a claim beyond that which is supported by the patent documents or relieve any claim
`of limitations imposed by the prosecution history," such as the statements made by the
`applicants here, excluding a “single structure” from the scope of a “plurality of tine
`elements.” Indacon, Inc. v. Facebook, Inc., 824 F.3d 1352, 1358 (Fed. Cir. 2016).
`Finally, Medtronic is wrong on the merits and again ignores the file history.
`Claim 1 of the 756 Patent was amended to recite “wherein the plurality of M
`tine elements are separate from and axially displaced from each other and from each
`of the P stimulation electrodes,1 but not to distinctly claim a multiple-structure
`embodiment. All the claims under submission did that already, under the plain
`meaning of “plurality of tine elements.” Instead, Medtronic amended this claim to
`avoid a prior art reference which located stimulation electrodes between tine elements,
`by clarifying that, while the tine elements of the claims were separated and displaced
`from each other, there were no intervening electrodes between them. That is why, at
`the same time the applicants added “other and each” to Claim 1 (then Claim 19), they
`
`
`1 Medtronic ellipses the bold and italic part of the claim language, which clarifies the
`meaning and purpose of the amendment.
`
`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
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`5
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`also added “wherein no electrodes are positioned between adjacent tine elements of
`the plurality of tine elements.” Ex. 34 (756 File History, 9/7/2010 Amendment in
`Response to Office Action, at 2 (MDT-00001004)). Medtronic added that same
`language to what became Claim 14 of the 756 Patent – which Medtronic contends
`encompasses a single structure - for the same purpose (id. at MDT-00001007) and told
`the Patent Office both independent claims were allowable, because they recite “where
`no electrodes are positioned between adjacent tine elements of the plurality of M tine
`elements.” Id. at MDT-00001012. If these amendments demonstrate anything, they
`demonstrate that the “plurality of tine elements” of both independent claims excludes a
`single structure, because the amendments required that there can be no electrodes
`between one individual tine element and another one adjacent to it.
`At bottom, Medtronic’s proposed construction should be rejected because what
`it now says “plurality of tine elements” means simply cannot be squared with what it
`then told the Patent Office to obtain allowance of the claims. For example, the
`specification unmistakably describes Figures 3 and 4 as a single “tine element,”2 and
`discloses that when multiple such elements are “arrayed in a tine element array 120 in
`the distal lead 15 portion 50 of the lead body 15,” (10:16-19), they comprise a
`“plurality of tine elements.” 6:5-9 (“The fixation mechanism comprises a plurality M
`of tine elements arrayed in a tine element array along a segment of the lead proximal to
`the stimulation electrode array.”).
`Under Medtronic’s proposed construction, however, Figures 3 and 4 can also be
`a “plurality of tine elements”, because Figures 3 and 4 can be said to have “two or
`
`
`2 314 Patent at 8:58-60 (“FIG. 3 is an expanded perspective view of one embodiment
`of a tine element employed in the lead of FIGS. 1 and 2”). See also id. at 8:60-63
`(“FIG. 4 is an expanded perspective view of a further embodiment of a tine element
`employed in the lead of FIGS. 1 and 2”).
`
`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
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`6
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`more parts or portions that include tines along the length of the lead body,” which
`together “form a single structure.”
`Medtronic Then
`
`Medtronic Now
`
`
`
`
`
`“A plurality of tine elements”
`“A tine element”
`“Two or more parts or portions that
`“FIG. 3 is an expanded perspective
`include tines along the length of the lead
`view of one embodiment of a tine
`body and which may form a single
`element employed in the lead of FIGS.
`structure”
`1 and 2”
`Nothing in Medtronic’s proposed construction prevents such an arbitrary line-drawing
`designation of “portions including tines” to create a “plurality” of tine elements (two,
`or even more – there are four tines, so there could be four “tine elements” in one
`structure) from what the specification clearly describes as a single tine element.
`Medtronic’s proposal therefore cannot be squared with the specification, which says
`this is a tine element, not a plurality of them.
`Similarly, as discussed above, during prosecution of this family, Medtronic
`distinguished the Schroeppel reference by stating it disclosed only a single “tine
`element,” not a “plurality of tine elements.” Now, however, Medtronic can say
`Schroeppel can also be a “plurality of tine elements” under its proposed construction,
`because Schroeppel’s Figure 13 can be said to have “two or more . . .portions that
`include tines along the length of the lead body,” which together “form a single
`structure.”
`
`Medtronic Then
`“A single tine element”
`
`Medtronic Now
`“A plurality of tine elements”
`
`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
`
`
`
`7
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`Case No. 8:19-cv-02115-DOC-JDE
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`“Two or more parts or portions that
`include tines along the length of the lead
`body and which may form a single
`structure”
`
` “Schroeppel only discloses a single tine
`element . . . and fails to disclose or
`suggest that the lead may include a
`plurality of tine elements. . . .” Ex. 20
`(12/29/2009 Final Office Action) at
`MDT-00136215
`Again, nothing in Medtronic’s proposed construction prevents such an arbitrary line-
`drawing designation of “portions including tines” to create a “plurality” of tine
`elements from what Medtronic unmistakably told the Patent Office was a “single tine
`element.” Medtronic’s construction thereby improperly seeks to recapture claim scope
`Medtronic has surrendered,3 including under the doctrine of equivalents.
`B.
`“indicative of” (324 Patent Claims 1, 12, 20)
`Medtronic’s Proposed Construction
`Axonics’ Proposed Construction
`Plain and ordinary meaning, which is
`“accurately measuring” the relevant
`synonymous with “serving as a sign of”
`temperature
`Medtronic’s critique of Axonics’ proposed construction of “indicative of”
`attacks straw men; under its own terms, Medtronic’s arguments directly support
`Axonics’ proposed construction of “accurately measuring” the relevant temperature.
`First, Medtronic claims that Axonics’ construction requires the temperature sensor to
`
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`3 For the same reason, Medtronic’s proposed construction would render the term
`indefinite, because it fails to “inform, with reasonable certainty, those skilled in the art
`about the scope of the invention” because there is no way to determine which single
`structures with tines are a single “tine element” and which are a “plurality of tine
`elements.” See Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 (2014).
`
`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
`
`
`
`8
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`“directly” measure the side of the housing. Medtronic Br. at 8. It is not clear how
`Medtronic came to that conclusion; there is no disagreement that the claims do not
`require “direct” measurement, and Axonics’ proposed construction does not require it.
`Moreover, Axonics and Medtronic both cite the same key description of a temperature
`sensor on the interior of the charger that measures the temperature of the outer surface
`through a thermally conductive material that contacts the temperature sensor on the
`interior of the housing and touches the patient on the side of the housing. Axonics Br.
`at 10 and Medtronic Br. at 9 (“Positioning temperature sensor 87 in the proximity or
`touching thermally conductive material 62 enables an accurate measurement of the
`contact temperature.”). The specification’s disclosure of how the temperature sensor
`measures the temperature of the side of the housing—i.e., the “contact surface”—
`shows that the measurement is not “direct” in the sense that the temperature sensor
`measures the side of the housing by touching it. Instead, the housing is thermally
`conductive, and the sensor measures the temperature of the side of the side of the
`housing by touching the interior of the housing at a thermally conductive site.
`Next, while Medtronic argues that the 324 Patent does not “require an output
`having a certain degree of accuracy,” Medtronic Br. at 8 (emphasis added), Medtronic
`affirmatively asserts that “[t]he specification explains that different locales of
`temperature sensors in the external charging device can vary in measurement
`accuracy.” Id. at 8-9. Medtronic further asserts that, nonetheless, “[d]iscussing these
`various potential positions of the temperature sensor, the specification discusses
`obtaining ‘reasonably accurate information on the temperature’ of the external surface
`contacting the patient.”4 Id. at 9 (quoting 324 Patent at 20:11-15). By its own terms,
`
`4 Medtronic argues that the specification discusses “various potential positions of the
`sensor” where it “discusses obtaining ‘reasonably accurate information on the
`temperature’ of the external surface contacting the patient.” Medtronic Br. at 9 (citing
`6:17-20, 20:15-22, and 20:22-22). This is not so. The specification at 20:11-15 instead
`specifically discusses the requirement that the temperature sensor be in “close
`
`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
`
`9
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`Medtronic’s argument here confirms that the claimed measurement of the housing
`surface temperature has to be accurate, which is exactly what Axonics’ construction
`requires. Medtronic’s only stated quarrel in making this argument is that there does not
`need to be one “certain degree” of accuracy, since different possible ways of
`measuring can “vary in measurement accuracy,” but concedes that whatever
`measurement is taken needs to be “reasonably accurate.” Axonics’ proposed
`construction, “accurately measuring,” does not require one specific degree of accuracy
`and does not preclude variations in accuracy depending on temperature ranges.
`Axonics Br. at 10-11; Irazoqui Decl. ¶¶ 67, 71. The specification section that
`Medtronic cites explains the level of accuracy required for the measurement of
`temperature, and a POSITA would have understood that “indicative” would refer to a
`temperature reading accurate to better than 0.lº C as “indicative,” when the temperature
`approaches the limit. Id. ¶ 67. It is the most stringent requirement (i.e., 0.1º C
`resolution) that drives the specification because the aim is to protect the patient from
`the deleterious effects of heat. Id. A POSITA would also understand that a more
`relaxed requirement (e.g., 3º C resolution) would be acceptable in some circumstances
`but not near the temperature limit. Id. The specification requires that the measurement
`be accurate, and Medtronic’s own brief confirms that the 324 Patent says it is.
`Next, Medtronic argues that “the temperature sensor need only ‘measure a
`parameter that correlates to a temperature of the system during recharge’” (Medtronic
`Br. at 10), suggesting that a parameter that correlates to a temperature is not an
`accurate measure of the temperature. Medtronic takes the quoted language from the
`specification from 5:51–52 out of context to afford it a different meaning:
`A sensor may be used to measure a parameter that correlates to a
`temperature of the system during recharge. For example, the measured
`
`
`proximity to thermally conductive material 62 in order to obtain reasonably accurate
`information on the temperature of the external surface … contacting patient.”
`
`DEF. RESPONSIVE CLAIM
`CONSTR. BR.
`
`
`
`10
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`parameter may be the temperature of a surface of an antenna of the
`external power source during recharge. The measured parameter may
`be compared to a programmable limit. A control circuit may then
`control the temperature based on the comparison.
`324 Patent at 5:51-57. As the specification confirms, the sensor is being used to
`correlate its temperature measurement, which is the measured parameter, to a
`programmable limit. The correlation for which the temperature sensor is being used is
`the correlation between an accurate temperature measurement and the programmable
`limit, not some correlation between the actual temperature measurement and some
`intermediate parameter. Moreover, as Dr. Irazoqui confirmed, a POSITA would have
`understood this passage to require an accurate measurement, and that without it the
`claimed control circuit could not perform its function. Irazoqui Decl. ¶¶ 64, 72.
`Next, Medtronic relies on a nonprecedential Federal Circuit case to suggest that
`the “PTO agrees” with Medtronic’s construction. Medtronic Br. at 8 n.6. Not so. In
`that case, the Federal Circuit disagreed with the Patent Trial and Appeal Board’s broad
`interpretation of a term which included the word “indicative” because the Board’s
`interpretation was broader than what the specification disclosed and every embodiment
`“describe[d] the data transmitted from the card issuer as a sign or index of what the
`gratuity should be.” In re Bookstaff, 606 F. App’x 996, 998 (Fed. Cir. 2015). Aside
`from the impropriety of using a specification of a wholly unrelated patent in an
`unrelated field by an unrelated patentee, the Federal Circuit there chose the narrower
`construction because it comported with the specification. Id. Here too, Axonics’
`interpretation takes into