BPAI Finds Broadest Reasonable Construction of "Fixed" Includes Both Direct and Indirect Connections
Justin E. Gray | Wednesday, July 22, 2009 at 1:40 PM 
Ex parte Carranza (BPAI Jul. 22, 2009)
Today, the Board of Patent Appeals and Interferences ("BPAI"), in an opinion by Administrative Patent Judge Horner, affirmed a rejection of claims relating to a pull-through tool that allows loading of a graft vessel onto an anastomotic device.
The claim construction issue in this appeal concerned whether the phrase "plurality of wires fixed to [a] handle" in the claim, as properly construed using the broadest reasonable interpretation of the claim, allowed for "intermediate structure, rather than [only] direct fixation." The applicants argued that the prior art taught an intermediate structure, not a direct fixation.
In its opinion, the BPAI pointed out that the specification stated that the flexible members of the handle "are connected to one another, directly or indirectly" and that the specification further provides that "[t]he proximal end of each tension member 52 is connected to the proximal end of the handle 48. The proximal end of the handle 48 may include a stud 66 to which the proximal end of each tension member 52 is fixed. More than one stud 66 may be provided, such that each tension member 52 is connected to a separate stud 66."
The BPAI went on to agree with the Examiner's position that there is no requirement in the claim for direct fixation and the applicants used the term "fixed" interchangeably with the term "connected" in the specification. Citing a Federal Circuit decision and CCPA decision both holding that the term "connected" does not necessarily mean a "direct connection" and pointing back to the specification's statement that the flexible members of the handle "are connected to one another, directly or indirectly," the BPAI found that it was reasonable to interpret the term "fixed" as restricted to neither direct nor indirect fixation.
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