Appeal No. 2003-1725
Application No. 09/357,645 Page 18
longitudinal axis in a first configuration and “a force actuator
that is constructed and positioned to apply a force to the
occluding member to bend the occluding member into a second
configuration having a non-linear longitudinal axis” (claim 20).
Claim 28 requires that the occluder includes “a force actuator
constructed and positioned to disrupt column stability of the
occluding member and bend the occluding member.”
According to the examiner (answer, page 8):
“Payne clearly disclose that the occluder member
(spring plate) has a first configuration with a
substantially linear longitudinal axis (see Fig. 2).
Forces are applied to bend the spring plate to the
configuration shown in Fig. 1.
The examiner does not separately address claim 28 or explain
where or how Payne disclose the application of a force from a
force actuator as claimed.
Appellants argue (substitute appeal brief, page 18 and reply
brief, page 16) that neither of the bladders (force actuators) of
Payne bend the corresponding occluding member (spring plate) into
a second non-linear configuration from a configuration having a
substantially linear axis. In this regard, we agree with
appellants in that the examiner has not discharged the burden of
establishing, prima facie, that either bladder of Payne provides
such a force to bend the corresponding spring plate from a
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