Appeal No. 97-4258
Application No. 08/429,966
disclosure or teaching of compounding a drug into the
filaments that form the structure of a helical stent.
Considering the reference in the light of Section 103 does not
alter this fact. While “treating” a filament with a drug
might be considered after the fact to be broad enough to
encompass compounding a drug into it, the reference
nevertheless would not have suggested doing so to one of
ordinary skill in the art. From our perspective, the only
motivation for such is found in the hindsight afforded one who
first viewed the appellants’ disclosure. This, or course, is
not permissible. In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d
1780, 1784 (Fed. Cir. 1992).
The rejection of claims 14-16, 18, 35 and 36 therefore
cannot be sustained.
Nor is the rejection of claim 17 sustained, for the
teachings of Palmaz, the secondary reference, fail to cure the
deficiency in Pinchuk.
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