Appeal No. 2003-1337
Serial No. 08/480,411
is the epitome of obviousness, see In re Skoner, 517 F.2d 947,
950, 186 USPQ 80, 83 (CCPA 1975); In re Pearson, 494 F.2d 1399,
1402, 181 USPQ 641, 644 (CCPA 1974), we affirm the rejection
under 35 U.S.C. § 103 over the combined teachings of Waddell and
Pray of claim 27 and claim 28 that stands or falls therewith.6
Claims 2, 7, 9, 12, 33-35 and 37
Claims 2, 7, 9, 12, 33-35 and 37 require that the braid
layer has fewer picks per inch at the proximal end than at the
other end. For this feature the examiner relies upon Pray
(answer, page 5).
The appellants state that the appellants and the examiner
appear to be in agreement that, with respect to the appellants’
claims which include a variable pick count limitation, Pray has
an effective filing date of April 9, 1993, which is the first
filing date of a Pray application containing a disclosure of a
braid layer having fewer picks per inch at the proximal end than
at the distal end (brief, pages 9-10). The appellants argue that
the declaration under 37 CFR § 1.131 (filed July 7, 1997, paper
no. 8) overcomes Pray by showing reduction to practice by the
appellants before December 1992 of a microtube having a variable
pick count (brief, pages 10-12).
6 The appellants state that claim 28 stands or falls with
claim 27 (brief, page 8).
9
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