In the following case, the patent owner, Brookhill, claims that the defendant, Intuitive, directly infringed its '003 patent for performing robotic surgery. Whether Intuitive's da Vinci robotic surgical system infringes the '003 patent depends on how we construe the term "remote location" in the following patent.

Instructions

Consider the evidence described below, and then answer the following three questions in the discussion board. Make sure to comment on one other student's submission:

1. What pieces of evidence recommend adopting Intuitive's proposed claim construction of remote location?
2. What pieces of evidence recommend adopting Brookhill's proposed construction?
3. The court of appeals decision in Phillips prioritizes some types of claim evidence over others. In light of Phillips , how would you advise a court to construe remote location?

Patented Invention:

Plaintiff Brookhill is the owner of the '003 patent, which is directed to systems and methods for performing robotic surgery. The systems and methods use robotic surgical tools and telecommunication links to permit a surgeon to operate from a "remote location beyond a range of direct manual contact."

Claim 10 of the '003 patent reads:

A surgical system, comprising: an endoscopic instrumentcamera means on said endoscopic instrument for obtaining video images of internal body tissues inside a patient's body via said endoscopic instrument; transmission means operatively connected to said camera means for transmitting, over an electromagnetic signaling link to a remote location beyond a range of direct manual contact with said patient's body and said endoscopic instrument, a video signal encoding said video image;

Receiver means for receiving actuator control signals from said remote location via said electromagnetic signaling link;

A surgical instrument insertable into the patient's body and movable relative to the patient's body and said endoscopic instrument;

And robot actuator means operatively connected to said surgical instrument and said receiver means for actuating said surgical instrument in response to the actuator control signals received by said receiver means from said remote location.

Accused Device: Brookhill has sued Intuitive, claiming that Intuitive's da Vinci robotic surgical system infringes the '003 patent. The surgeon in the da Vinci system is located in the same operating room as the patient. The parties have agreed that if Claim 10 is found to not cover instances where the surgeon is located in the same operating room as the patient, the court would be required to find that the patent is not infringed.

Specification: The written description in the '003 patent explains that an endoscopic instrument and a surgical instrument may each be placed within hollow tubes, inserted through a small incision in the abdominal wall of a patient, and thereby reach the surgical site. The endoscope remotely transmits to a computer that generates an image of the internal body tissues of the patient on a monitor. The specification sets forth no specific parameters as to the distance between the surgeon and patient but teaches generally that a surgeon using the disclosed assembly may operate without directly touching the patient, the surgical instruments, or the endoscope. The specification further states that the advantage of the invention is that it allows a surgeon to operate at some distance, possibly across the world, from the operating room in which the patient is located. The description of the preferred embodiment is as follows:

It is to be understood, of course, that surgeons and other personnel are present in the operating room at the time of surgery to oversee and supervise the proper operation of the equipment. These personnel may communicate with the remote surgeon via computers and telecommunications links and/or through other telecommunications or electromagnetic signaling linkages such as the telephone network.

The Objects of the Invention section of the specification describes the invention as "reduc[ing] surgical costs" and "facilitat[ing] the performance of operations by surgeons from all over the world."

The Background section states that in traditional settings, "the surgeon is always present in the operating room to manipulate the surgical instruments."

Dictionary Terms: The word "remote" has the following possible meanings in Webster's Third New International Dictionary:

1. "separated by intervals greater than usual"
2. "far apart . . . far removed; not near; far; distant"

Prosecution History: Claim 10 originally used the phrase "remote location beyond a range of direct visual contact." The patent examiner rejected this phrase as too indefinite because "the range of direct visual contact may be different for certain operators of the system and this cannot be given weight in the claims." To overcome the indefiniteness rejection, Brookhill replaced the word "visual" with the word "manual." In support of this change, Brookhill stated that the amended text "means that the remote location is beyond the arm's reach of the patient. Inasmuch as an arm's length is a well understood difference, it is believed that the remote location is sufficiently defined for purposes of the Patent Statute."

Brookhill further stated that "[t]his amendment clarifies that a remote operator who is generating actuator control signals . . . is so far from the patient and the endoscopic instrument as to be unable to manipulate the instrument at the patient's side." The examiner subsequently allowed the claims and the patent issued.