The Battle of "Wounded" Knee: Kinetic Concepts, Inc. v. Blue Sky Med. Group, Inc.

The Battle of "Wounded" Knee: Kinetic Concepts, Inc. v. Blue Sky Med. Group, Inc.


In Kinetic Concepts, Inc. v. Blue Sky Med. Group, Inc., 2009 U.S. App. LEXIS 1788 (Fed. Cir. February 2, 2009), the patents at issue related to treating wounds by applying suction, which the patents referred to as "negative pressure." In the claim construction, the parties focused on the construction of "treating a wound," which was construed to mean "giving medical care to a wound." Defendants presented several prior art references, but plaintiffs distinguished them by arguing that they did not teach "treating a wound with negative pressure" and thus could not render the claimed invention obvious.
 
On appeal to the Federal Circuit, defendants argued that the district court's construction (or failure thereof) to construe "wound" prevented the jury from properly assessing whether the prior art was within the scope of the asserted claims. In rejecting this argument, the court agreed with plaintiffs that "wound," as used in the asserted patents, did not cover “fistulae” or "pus pockets" as described in the prior art. The court stated that: “[a]ll of the examples described in the specification involve skin wounds. To construe ‘wound’ to include fistulae and ‘pus pockets’ would thus expand the scope of the claims far beyond anything described in the specification.” (citations omitted).
 
However, in the dissent, Judge Dyk stated:
 
the majority improperly holds that the claim term "wound" can be limited to the disclosed embodiments in the specification, and, having done so, then misreads the specification as showing only embodiments treating harm to the surface of the body or skin wounds. Under the correct construction of this claim term, the asserted claims of U.S. Patent Nos. 5,636,643 ("'643 Patent") and 5,645,081 ("'081 Patent") would have been obvious.
 
     . . . .
 
     The majority holds that the term "wound" should be understood as limited to damage to tissues near the surface of the body, particularly the skin, and should not include damage to organs. The majority points to no medical dictionary or other extrinsic evidence supporting this claim construction. The specification does not define "wound" or provide any examples of the types of harms that would not qualify as wounds under the claim terms. Nor does the specification state that the examples listed in the specification were intended to describe the entire invention. Nonetheless, the majority concludes that, because the specification examples supposedly only include descriptions of damage to the skin, the specification limits the kinds of wounds encompassed by the claim.
 
(footnotes and citations omitted)