Appeal No. 1999-2728 Page 4
Application No. 08/423,963
device 20 is inserted. Rather, only tissue beneath the device
20, around which the suture is looped, can be manipulated by the
suture 35. Moreover, we do not share the examiner's view that
the suture is attached between opposite ends of the anchor member
(device 20) simply because it is inserted through the device.
Contrary to the examiner's position, the suture is attached only
at one point, the spindle, which is located at one end of the
device 20, not between opposite ends of the anchor member as
recited in claim 1.
For the foregoing reasons, we conclude that independent
claim 1 is not anticipated2 by Smith. It follows that claims 2-
11, which depend from claim 1 and thus incorporate all of the
limitations thereof, are also not anticipated by Smith.
REMAND TO THE EXAMINER
This application is remanded to the examiner to consider the
patentability of the claims over U.S. Pat. No. 4,235,238 (Ogiu)
and International Patent Application Publication No. WO 87/01270
2 Anticipation is established only when a single prior art reference
discloses, expressly or under the principles of inherency, each and every
element of a claimed invention. RCA Corp. v. Applied Digital Data Sys., Inc.,
730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir. 1984). In other words,
there must be no difference between the claimed invention and the reference
disclosure, as viewed by a person of ordinary skill in the field of the
invention. Scripps Clinic & Research Found. v. Genentech Inc., 927 F.2d 1565,
1576, 18 USPQ2d 1001, 1010 (Fed. Cir. 1991).
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