Appeal No. 2005-0916
Application No. 09/785,374
reference states that the tubular support should be made in a way
that allows maximum passage therethrough while providing adequate
strength (see column 7, lines 12-16). Consequently, we find that
Makower provides a generic teaching that the tubular support may
be made from malleable and non-malleable metals and plastics,
contingent upon the intended use of the device. Since one of the
challenges to surgeons and their support staff during invasive
and minimally-invasive surgery is manipulating a myriad of
surgical devices, we agree with the examiner that it would have
been obvious for one of ordinary skill in the art to configure
the tube of Makower such that it be flexible and kink resistant
during use.
Appellants emphasize that there is no disclosure in Makower
that the tube is kink resistant and is made from a malleable
material. However, we agree with the examiner that the reference
teaching that the tube should allow a maximum passage would have
suggested the property of kink resistance. Also, although
Makower does not explicitly state that the tube should be of a
malleable material and be configured to be kink resistant and
bendable, it has often been held by our reviewing Court that one
of ordinary skill in the art is presumed to know more than that
which is specifically disclosed in a reference. Even though
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