Appeal No. 2003-1725
Application No. 09/357,645 Page 14
them but, in fact, are configured to actually bend
spontaneously such that they return automatically to
the open configuration illustrated in Fig. 1 on release
of the force of the bladders (i.e. they fail
open)(e.g., see Payne, at column 1, lines 51-56 and at
column 2, line 65-column 3, line 1).
Furthermore, appellants acknowledge that the examiner has
correctly identified the spring plate (28 or 29) of Payne as an
occluding member. See page 10 of the reply brief. In light of
the above, appellants’ arguments are not persuasive and we find
ourselves in agreement with the examiner’s obviousness
conclusion. This is so since “anticipation is the epitome of
obviousness,” Jones v. Hardy, 727 F.2d 1524, 1529, 220 USPQ 1021,
1025 (Fed. Cir. 1984). It follows that on this record, we will
sustain the examiner’s § 103(a) rejection of representative claim
1 and dependent claims 2-4, 6, 7 and 25, which stand or fall
together therewith.
Claim 5
Our disposition of the examiner’s § 103(a) rejection of
separately grouped and argued dependent claim 5 is another
matter. Dependent claim 5 additionally specifies that the
“occluding member is oriented with a longitudinally axis that is
essentially perpendicular to a wall of a tube to be occluded.”
The examiner takes the position that (answer, page 7):
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