Appeal No. 2000-2029
Application 09/012,530
[b]ecause the two dilators are art-recognized
functional equivalents, it would have been obvious to
one of ordinary skill in the art at the time the
invention was made to use the dilator in Toye et al.
with the cannula assembly in Fonger et al.
Like appellant, we are of the opinion that the examiner has
not made out a proper case of prima facie obviousness based on
the attempted combination of Fonger and Toye. Having carefully
reviewed the applied patents, we see no reason why one of
ordinary skill in the art would have viewed the dilator (22) of
Toye and the catheter structure (5) of Fonger to be “art-
recognized functional equivalents,” as is urged by the examiner.
Moreover, we see no motivation or suggestion in the applied
references, and the examiner has pointed to none, that would have
led one of ordinary skill in the art to use the dilator of Toye
in the percutaneous transseptal left atrial cannulation system of
Fonger. In particular, given the entirely different manner of
inserting the cannula (3) of Fonger into the heart and through
the septum into the left atrium, we see no reason whatsoever to
use the dilator of Toye in Fonger. Thus, since we have
determined that the teachings and suggestions that would have
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